18 Legislative requirements and planning approval process

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1 Table of contents Introduction Authority to plan Framework for planning Corridor protection Busway declaration Property acquisition Development approval Transport Infrastructure Act Sustainable Planning Act Integrated Development Assessment System Designation of Community Infrastructure under the Sustainable Planning Act State Planning Codes State Development and Public Works Organisation Act Significant project declaration Summary Legislative requirements State legislation Environmental Protection Act Native Title (Queensland) Act Aboriginal Cultural Heritage Act Nature Conservation Act Vegetation Management Act Fisheries Act Dangerous Goods Safety Management Act Local Government Act Land Act Acquisition of Land Act Commonwealth legislation Environment Protection and Biodiversity Conservation Act Native Title Act Possible approvals matrix approvals, permits and licences Summary Page 18.1

2 List of tables Table 18.1: Key legislative tools for corridor protection and preservation Table 18.2: Approvals, permits and licences that may be associated with the preferred corridor Page 18.2

3 18 Legislative requirements and planning approval process 18.1 Introduction The Transport Planning and Coordination Act 1994 in conjunction with the Transport Infrastructure Act 1994 (Queensland) establishes a regime which allows the Queensland Government to investigate, plan, protect and construct transport infrastructure in Queensland. Development of the Cairns Transit Network could require a number of approvals under the Sustainable Planning Act 2009, other state legislation and Commonwealth legislation. This chapter identifies the key legislation under which planning, preservation and protection of the Cairns Transit Network will occur and likely permits, licences or approvals that may be required for its future construction and operation Authority to plan The Department of Transport and Main Roads is responsible for investigating, planning, establishing, maintaining, managing and operating transport infrastructure within the State of Queensland. The establishment, delivery and operation of busways, bus priority, bus-related infrastructure and light rail infrastructure are regulated by the Transport Infrastructure Act Under this Act, the Department of Transport and Main Roads may undertake the activities necessary to establish public transport infrastructure such as entering into contracts, compulsorily acquisition, disposal of property, appointment of agents and so on Framework for planning The Concept Design and Impact Management Planning (CDIMP) process is a voluntarily planning and impact assessment study that seeks to emulate the technical rigour and the community notification (engagement) intent of an Environmental Impact Statement (EIS) as defined under the Sustainable Planning Act (2009), the State Development and Public Works Organisation Act (1971), the Environmental Protection Act (1994) and the Environmental Protection and Biodiversity Protection Act (1999). A Concept Design Study (CDS), which has been undertaken for Cairns, is a more strategic adaptation of the CDIMP process that is used to inform medium to long term identification and protection of an alignment (Concept Design) rather than detailed impact management planning prior to short term delivery. This approach is generally used where delivery timeframes are uncertain or long term and it is more appropriate to undertake detailed impact management planning at a later date closer to the time of implementation. The CDIMP and CDS methodologies have been specifically developed by the Department of Transport and Main Roads, with reference to the requirements of these processes, to suit transport corridor planning. The CDS provides the basis for: relative prioritisation of the project within the Queensland Government infrastructure program Page 18.3

4 approval of a concept design (alignment) and subsequent mapping under the Integrated Development Assessment System (IDAS) scoping of future impact management investigations and the formulation of strategies to be applied during delivery and operational phases of the project when/if it proceeds further planning for delivery, procurement, staging, network integration. As a voluntary process it allows the department to be flexible in meeting community expectation and the needs of decision makers. The approved Concept Design Study itself does not constitute an approval under any legislative or legal framework, including: approval to proceed to delivery approval of budget allocation approval of staging and delivery timeframes designation of a transport corridor under Transport Infrastructure Act (1994) development approval under IDAS or approval under any legislation integrated with the Sustainable Planning Act 2009 community infrastructure designation Corridor protection Currently, the Department of Transport and Main Roads has the power to protect public transport infrastructure using s8a of the Transport Planning and Coordination Act. Once planning of the infrastructure is complete, protection of the corridor occurs under Section 8E of the Transport Planning and Coordination Act 1994 subject to the approval of the Chief Executive of Transport and Main Roads. Mapping of the corridor as a guideline under section 8E triggers the Department of Transport and Main Roads concurrence agency powers for the Integrated Development Assessment System under the Sustainable Planning Act 2009, and proposed development is assessed for its impact and is approved, refused or approved subject to conditions. It should be noted that the provisions of the Transport Infrastructure Act and the Transport Planning and Coordination Act 1994 do not exempt busway development from the provisions of the Sustainable Planning Act 2009 and other relevant legislation. The Transport Infrastructure Act requires approvals to be sought if other state infrastructure is disturbed Busway declaration Chapter 9, part 3 of the Transport Infrastructure Act deals with the declaration of land as busway land. As sections of the project are constructed and completed, the Department will make a recommendation to the Minister regarding possible future busway declarations Property acquisition The Transport Planning and Coordination Act 1994 allows for transport planning, including bus priority infrastructure and outlines the authority and grounds under which the department may seek to acquire property. The Transport Infrastructure Act 1994 also contains Page 18.4

5 strategies for the acquisition of land for transport requirements. Generally, under Section 25 of the Transport Planning and Coordination Act 1994, the Department of Transport and Main Roads may, acquire, hold, dispose of or otherwise deal with property for the purposes of transport, for an incidental purpose, for the purpose of a transport associated development or for a combination of these purposes. If land is acquired by resumption for the purpose of a transport associated development, at the time of acquisition the land must also be acquired for the purposes of transport or for an incidental purpose. Generally, the Department may acquire property for the facilitation of transport infrastructure; the supply or improvement of facilities for users of transport infrastructure; the amelioration of negative environmental effects associated with transport infrastructure; the construction or relocation of ancillary works and encroachments and public utility plant. The department, acting under the powers conferred on it through the Transport Planning and Coordination Act 1994 acquires land for transport projects through the Acquisition of Land Act This act outlines the process for the acquisition of property and property owner compensation. See also section The Community Infrastructure Designation process has its own property acquisition process under the Sustainable Planning Act Where Community Infrastructure designation as discussed below is considered an option, property is acquired via the powers of the Sustainable Planning Act Development approval Transport Infrastructure Act 1994 Busways and busway transport infrastructure are regulated under the Transport Infrastructure Act. The overall objective of the Transport Infrastructure Act is to provide a regime that allows for and encourages effective integrated planning and efficient management of transport infrastructure. In particular, the objectives of the Transport Infrastructure Act are to allow the Government to have a strategic overview of the provision and operation of all transport infrastructure, including (but not limited to) roads, rail, ports, air and public marine transport. The provisions of the Transport Infrastructure Act do not exempt the busway development from the provisions of the Sustainable Planning Act and other relevant legislation. The Transport Infrastructure Act also requires approvals to be sought where state infrastructure is disturbed. Page 18.5

6 Sustainable Planning Act 2009 The Sustainable Planning Act is Queensland s principal planning legislation and seeks to achieve ecologically sustainable development. It sets out the framework in which development made assessable under the Act is to be undertaken and emphasises the coordination and integration of planning at the state, regional and local levels. The Sustainable Planning Act repeals the Integrated Planning Act 1997 (IPA) and seeks to deliver a more contemporary planning, development and building system to facilitate improved sustainable development outcomes.. Under this Act the concept of development includes one or more of the following: carrying out building work carrying out plumbing and drainage work carrying out operational work reconfiguring a lot making a material change of use of premises. Development of the Cairns Transit Network is likely to involve all facets of development as defined by the Sustainable Planning Act Therefore, some development approvals will be required even if the local government (Cairns Regional Council) were to designate busways as exempt development within their planning scheme Integrated Development Assessment System The Sustainable Planning Act 2009 describes the Integrated Development Assessment System (IDAS) framework under which applications for approvals required under the Sustainable Planning Act 2009 are made and assessed. Under IDAS a development is assessed for compliance with the local planning scheme, applicable state planning policies, and any other applicable laws or standards. Under the Sustainable Planning Act, development is either exempt, self-assessable, development requiring compliance assessment, assessable or prohibited. Schedule 1 of Sustainable Planning Act Regulation (SP Reg) prescribes certain development to be prohibited development. Schedule 3 of the Sustainable Planning Regulation 2009 (SP Reg) prescribes certain developments to be assessable and self-assessable, and Schedule 18 prescribes development subject to compliance assessment. Where development is listed in Schedule 4 of the SP Reg it cannot be made assessable under a local government planning scheme. Development that is prescribed by the state in Schedule 3, or by local government through their planning scheme as assessable development, requires an application for development approval under the Sustainable Planning Act. Under the SP Reg, Schedule 4, Table 5, Item 8, no aspect of development for the maintenance, repair, upgrading, augmentation or duplication of busway transport infrastructure can be made assessable under a local government planning scheme. It should be noted that this exemption does not negate the requirement to obtain approvals for assessable development that is identified under Schedule 3 of the SP Reg, for example, works in a watercourse, the removal of native vegetation, and the undertaking of Environmentally Relevant Activities (ERAs). Where development listed under Schedule 3 is Page 18.6

7 triggered an IDAS development approval under the Sustainable Planning Act 2009 will be required. However, establishment of the Cairns Transit Network rather than maintenance as discussed above would likely trigger the requirement for several development approvals, particularly in relation to Building work, Material Change of Use and Reconfiguration of a Lot. More information regarding the Sustainable Planning Act 2009 and IDAS process can be found at the Department of Infrastructure and Planning s website Designation of Community Infrastructure under the Sustainable Planning Act The Sustainable Planning Act 2009 establishes the designation process as a specific mechanism for dealing with community infrastructure. The purpose of identifying land for community infrastructure is to ensure that suitable land is available for the development of community infrastructure when it is required. The Act identifies that all aspects of development for community infrastructure prescribed under a regulation are exempt from assessment under IDAS. This form of designation applies to projects rather than land. A development may qualify as community infrastructure through either ministerial designation or as a prescribed development set out in regulation. Prescribed development includes all forms of transport infrastructure undertaken by the Department of Transport and Main Roads, including works associated with provision of that infrastructure. In making a designation the Minister must be satisfied that there has been adequate environmental assessment, including adequate public consultation, and also adequate account of issues raised in the public consultation. On this basis the Minister may request preparation of an Environmental Impact Statement, or nominate an alternative process that will satisfy these requirements. A community infrastructure designation lasts for a period of six years, unless a notice of extension of the designation has been issued by the Minister responsible for the Sustainable Planning Act. Therefore it should be considered closer to delivery of the Cairns Transit Network State Planning Codes State planning policies are statutory planning instruments under the Sustainable Planning Act 2009 that relate to matters of Queensland state interest. These policies must be considered as part of the assessment process for development of land. State Planning Policy 1/92: Development and conservation of agricultural land This state planning policy addresses the conservation of good quality agricultural land and provides guidance to local authorities and state government on how good quality agricultural land needs to be considered when carrying out their range of planning duties. There are a range of land classes, which are based on an assessment of the suitability of the land for specified agricultural uses, that involve rating the ability of the land to maintain a sustainable level of productivity using soil type and topographic and climatic factors that determine sustainable productivity. The policy recognises that in some instances it may be necessary to build on good quality agricultural land if there is an overriding need for the development in Page 18.7

8 terms of public benefit. As a component of the transit corridor will be delivered on good quality agricultural land, this policy may be relevant to the Cairns Transit Network. State Planning Policy 1/02: Development in the vicinity of certain airports and aviation facilities This state planning policy sets out broad principles concerning development in the vicinity of airports and aviation facilities considered significant for the state s transport infrastructure or national defence system. The state planning policy applies to development that could adversely affect the safety and efficiency of operational airspace by obstructions resulting from the erection of permanent or temporary physical structures either natural or man-made. It also applies to development that has the potential to create adverse effects on the functioning of aviation facilities caused by the penetration of the facility s sensitive area. The Cairns Transit Network will likely involve development within the vicinity of the Cairns Airport however it is not envisaged to impact on airport operations. State Planning Policy 2/02: Planning and managing development involving acid sulphate soils The purpose of this state planning policy is to ensure that development involving acid sulphate soils is planned and managed to avoid the release of potentially harmful contaminants into the environment. This state planning policy applies to certain areas of Queensland where the natural ground level is less than 20 metres Australian Height Datum and soil below 5 metres Australian Height Datum (AHD) is disturbed by the proposed works. As a component of the study area includes potential acid sulphate soils, this policy would be relevant for the Cairns Transit Network. This will be investigated further in future detailed design and impact management phases. State Planning Policy 1/03: Mitigating the adverse impacts of flood, bushfire and landslide The purpose of this state planning policy is to set out the state government s interests with regard to natural hazards of flood, bushfire and landslide and ensure these matters are adequately addressed when carrying out development assessment. Various parts of the study area are subject to flood, bushfire and/or landslide, therefore this state planning policy will require consideration. This will be investigated further in future detailed design and impact management phases. State Coastal Management Plan The State Coastal Plan commenced in February 2002 and describes how the coastal zone is to be managed as required by the Coastal Protection and Management Act This plan and associated regional coastal management plans identify the coastal management districts in particular regions. Regional coastal management plans implement the State Coastal Management Plan policy framework at the regional level, and identify key coastal sites that require special management within the region. Cairns is covered by the Wet Tropics Regional Coastal Management Plan, which describes how the coastal zone within the Wet Tropics region is to be managed and provides direction for implementing the State Coastal Management Plan. This will be investigated further in future detailed design and impact management phases. Page 18.8

9 State Development and Public Works Organisation Act Significant project declaration Under part 4, section 26 of the State Development and Public Works Organisation Act 1971, the Coordinator-General may declare a proposal to be a significant project. The Coordinator-General may declare a project to be a significant project based on one or more of the following criteria in which the project will: involve complex approval requirements, including local, state and federal Government involvement require a high level of investment in the state have potential effects on infrastructure and/or the environment include the provision of substantial employment opportunities be of strategic significance to a locality, region or the state. A significant project declaration provides the Coordinator-General with the option to require an environmental impact statement to be prepared under the provisions of sections 29 to 35 of the State Development and Public Works Organisation Act On the basis that the CDIMP and CDS methodologies are considered as sufficiently rigorous for their purposes, the Coordinator-General has historically declined to designate busway and bus priority projects as significant and it is considered unlikely that the Cairns Transit Network will become an exception to this Summary This section outlines the key legislative tools for corridor preservation and protection for transport planning in Queensland. A summary is provided in Table It has not yet been determined which legislative tool/s will be used to preserve the corridor for the Cairns Transit Network. The Department of Transport and Main Roads is undertaking a review of project approval and protection processes in consultation with the Department of Infrastructure and Planning. Determination of the appropriate legislative tool/s for the Cairns Transit Network will be made upon completion of this review. For previous bus-based transport planning projects undertaken in south east Queensland (such as the Eastern Busway and Northern Busway), corridors have been protected using the repealed Integrated Planning Act 1997 (now the Sustainable Planning Act 2009) and land has been acquired under the Transport Infrastructure Act 1994 (and the Transport Planning and Coordination Act 1994). Page 18.9

10 Table 18.1: Key legislative tools for corridor protection and preservation Strategy Legislation Outcome Actions Integrated Development Assessment System Designation of land for community infrastructure Declaration of a significant project Sustainable Planning Act 2009 Sustainable Panning Act 2009 State Development and Public Works Organisation Act 1971, section 26 Approval of development actions Approval of project development and land implications (not project timing, staging or budget) Acquisition Provides entry point for Integrated Development Assessment System or community infrastructure designation Lodgement of impact assessable development application with local council. Referrals, information requests, public notification involved. Adequate environmental assessment and consultation must be undertaken, which includes: -an environmental impact statement under the Sustainable Planning Act; or -notification and decision stages under Integrated Development Assessment System; or -an environmental impact statement under the Environmental Protection Act; or -assessment under section 35 of State Development and Public Works Organisation Act; or -environmental assessment and community engagement considered adequate by the Coordinator- General. Preparation of environmental impact statement under State Development and Public Works Organisation Act Development application can be submitted under Integrated Development Assessment System, or community infrastructure designation can be sought Responsible authority Local government & state agencies State Minister Coordinator- General Risks/Notes No land acquisition procedures Statutory timeframes apply Local government coordinates approvals process State government is referral /concurrence agency Development is exempt against local government planning schemes Triggers hardship acquisition provisions of the Sustainable Planning Act 2009 Is in bilateral agreement with Environment Protection and Biodiversity Conservation Act Page 18.10

11 Strategy Legislation Outcome Actions Authorised works Transport infrastructure State Development and Public Works Organisation Act 1971, section 108 Integrated Planning Act 1997 Transport Infrastructure Act 1994 (and the Transport Planning and Coordination Act 1994) Approval of development and acquisition Acquisition No environmental impact statement required, but an assessment of environmental effects required under State Development and Public Works Organisation Act Chief executive able to acquire land for alignment Responsible authority Coordinator- General Chief Executive of Transport and Main Roads Risks/Notes Development is exempt from local government planning schemes Works can be undertaken by the Coordinator-General or another person on behalf of the Coordinator- General Chapter 9, section 3 deals with the process for declaration of land as busway land Page 18.11

12 Project 18.8 Legislative requirements The Cairns Transit Network will need to comply with a number of legislative requirements. This section provides a brief description of other legislation, standards and guidelines that are considered to be relevant to the design and construction of the Cairns Transit Network State legislation Environmental Protection Act 1994 The purpose of the Environmental Protection Act 1994 (Queensland) is to protect Queensland s environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends. The Act utilises a number of mechanisms to achieve its objectives, including creating a general environmental duty, licensing environmentally relevant activities and issuing environmental protection policies and regulations including the Environmental Protection Regulation 2008, Environmental Protection (Noise) Policy 2008, Environmental Protection (Air) Policy 2008, Environmental Protection (Water) Policy 1997 and Environmental Protection (Waste Management) Policy Native Title (Queensland) Act 1993 The Native Title (Queensland) Act 1993 was enacted to ensure Queensland s laws are consistent with the Commonwealth Native Title Act 1993 for dealings affecting native title. The Native Title Act seeks to formally recognise that native title rights did, and in some cases still do, exist for the descendants of Aboriginal and Torres Strait Islander people, and that descent groups can lodge native title claims. Native title in land can be extinguished by valid government acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold estates. In future detailed design, native title searches will be undertaken Aboriginal Cultural Heritage Act 2003 The Aboriginal Cultural Heritage Act 2003 (Queensland) is intended to provide effective recognition, protection and conservation of Aboriginal cultural heritage within the state. Under this Act it is an offence to knowingly destroy or interfere with places, artefacts and landscapes of Aboriginal heritage or spiritual culture. Individuals or corporations undertaking development in Queensland are obliged to observe the Aboriginal Cultural Heritage Duty of Care Guidelines. For the Cairns Transit Network it will be necessary to develop a cultural heritage management plan in accordance with part 7 of the Aboriginal Cultural Heritage Act. Page 18.12

13 Project Nature Conservation Act 1992 The Nature Conservation Act 1992 (Queensland) seeks to achieve the conservation of nature through an integrated and comprehensive strategy for the whole of Queensland. The Act provides for the conservation of nature by the declaration and management of protected areas, and also the protection of native wildlife not found in a protected area. The environmental chapters of this report outline the relevant considerations for the alignment of the Cairns Transit Network Vegetation Management Act 1999 The Vegetation Management Act 1999 (Queensland) seeks to regulate the clearing of native vegetation to preserve remnant endangered and of concern and endangered regional ecosystems, vegetation in areas of high nature conservation values and areas vulnerable to land degradation. Chapter 11 - Ecology outlines the relevant considerations for the alignment of the Cairns Transit Network Fisheries Act 1994 The Fisheries Act 1994 and the Fisheries Regulation 1995 (Fisheries Reg) govern both commercial and recreational fishing activities and provide for the management, use, development and protection of fisheries resources and fish habitats, and the management of aquaculture activities. The Act holds provisions for the following: removal, damage or disturbance to marine plants, including mangroves works in a declared fish habitat waterway barrier works. Under the Schedule 3 of the SP Reg the following works, that impact on fisheries resources as defined under the Fisheries Act, are considered assessable development: building works and operational works in a fish habitat area (table 1, item 2 and table 4, item 7) operational works involving the construction or raising of waterway barrier works (table 4, item 6) operational works involving the removal, destruction and/or damage to marine plants (table 4, item 8). Should the project works involve these activities, approval is required in the form of a Development Permit under the Sustainable Planning Act Dangerous Goods Safety Management Act 2001 The Dangerous Goods Safety Management Act 2001 (Queensland) covers the storage and handling of dangerous goods and combustible liquids as well as the operation of major hazard facilities. It is not likely that this Act will be required for assessment in the project during construction or in the operational phase of the development Local Government Act 2009 The Local Government Act 2009 provides a legislative framework for the local governments in Queensland and sets out a process for the drafting and implementation of local laws. Page 18.13

14 Project Through local laws, local governments can establish permit or licence regimes for activities they want to regulate and allow for the issue of compliance notices. It is likely that the activities associated with the construction of the Cairns Transit Network will trigger permitting processes under various local laws for a range of activities including: removal of locally protected vegetation vehicle parking traffic control storage of building and construction materials construction works on pedestrian footpaths permanent and temporary road closures. Approval from Cairns Regional Council under the relevant local laws will be required prior to works proceeding Land Act 1994 The Land Act 1994 (Queensland) provides a framework for the allocation of state land either as leasehold, freehold or other tenure. Permits may be acquired under this Act from the Department of Natural Resources and Water for the occupation of a reserve, road or unallocated state land Acquisition of Land Act 1967 The Acquisition of Land Act 1967 (Queensland) enables the state to acquire freehold land for public works or other public purposes. The state may acquire land: by agreement if an agreement can be reached on compensation to be paid, land can be purchased as soon the necessary transfer documents have been executed. Alternatively, the acquisition could proceed by way of an agreement pursuant to section 15 of the Acquisition of Land Act. This leads to the issue of a gazette notice published in the Government Gazette, thereby passing ownership to the constructing authority compulsorily resumptions are made under various pieces of legislation, subject to the provisions of the Acquisition of Land Act. A Notice of intention to resume showing the location and area of the land required is forwarded to the landholder (and mortgagee etc). This specifies a date (not less than 30 days later) by which the landholder may lodge an objection, in writing, to the resumption of the land. Compulsory acquisition matters will be addressed over the life of this project. For more information see: < Commonwealth legislation Environment Protection and Biodiversity Conservation Act 1999 The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) provides a legislative framework aimed at protecting the environment; specifically, matters of National Environmental Significance. It is intended to streamline the national environmental assessment and approvals process, protect Australian biodiversity, and integrate management of important natural and cultural places. Page 18.14

15 Project To this end, the EPBC Act prescribes the commonwealth s role in environmental assessment, biodiversity conservation, and the management of protected areas. The EPBC Act identifies seven matters of National Environmental Significance and requires assessment and approval for any action that has, or is likely to have, a significant impact on any of those matters. The seven matters of national environmental significance include: world heritage (sections 12 and 15A of the EPBC Act) listed threatened species and communities (sections 18 and 18A) listed migratory species (sections 20 and 20A) national heritage places (sections 15B and 15C) ramsar wetlands of international significance (sections 16 and 17B) nuclear actions (sections 21, 22 and 22A) commonwealth marine areas (sections 23, 24 and 24A). The EPBC Act is only triggered if an action is likely to have a significant impact on a matter of environmental significance. In the project area, key matters of national environmental significance include: world heritage properties (proximity to Wet Tropics and Great Barrier Reef) nationally listed threatened species and ecological communities listed migratory species. While these key matters would be present, it is unlikely that the construction and operation of the Cairns Transit Network will have impact upon these. However, there is merit in undertaking consultation on this matter with the Department of Environment and Heritage during detailed design and future impact management. Of relevance also is the fact that the EPBC Act includes provision for bilateral agreements which allow the Commonwealth to accredit particular state/territory assessment processes and, in some cases, state/territory approval decisions. This allows the Commonwealth to delegate to the states/territories the responsibility for conducting environmental assessments under the EPBC Act and, in certain circumstances, the responsibility for granting environmental approvals under the EPBC Act. If a proposed action is covered by an assessment bilateral, then that action is assessed under the accredited state/territory process. After assessment, the proposed action still requires approval from the Minister under the EPBC Act. If a proposed action is covered by an approval bilateral, then it will be assessed and approved by the state/territory in accordance with an agreed management plan. No further approval is required from the Minister under the EPBC Act. Of possible relevance to the Cairns Transit Network is the fact that the State Development and Public Works Organisation Act 1971 is an approved bilateral agreement Native Title Act 1993 The functions of the Native Title Act 1993 include setting up processes through which native title can be recognised, in addition to providing protection for native title rights. Proposed activities or developments that may affect native title are classed as future acts. The Act provides for the determination of native title claims, for the treatment of future acts, and the requirement of consultation and/or notification to relevant native title claimants where future Page 18.15

16 Project acts are involved. Under the Act, any past grants of freehold or leasehold interests that were thrown into doubt by the Mabo decision are validated. The Act operates in conjunction with associated state legislation, such as the Native Title (Queensland) Act 1993, the Aboriginal Land Act 1991 and the Torres Strait Islander Act In Queensland, all of the abovementioned acts are administered by the Department of Environment and Resource Management Possible approvals matrix approvals, permits and licences A number of approvals, permits and licences will be required to undertake work on the Cairns Transit Network. Depending on the approvals process followed, these may come at various stages of the project, or there may be exemptions from some approvals. The following matrix (Table 18.2) is intended to offer a general indication of the approvals, permits and licences that may be triggered during the project. Given the likely progressively staged implementation and delivery of the Cairns Transit Network, it is probable that legislation and policy requirements will be revised and thus determining the actual suite of approvals permits and licences will require further revision of the approvals matrix as the project progresses though each construction phase. Table 18.2: Approvals, permits and licences that may be associated with the preferred corridor Permit/approval/ licence required Description Responsible authority Environmental Protection Act 1994 Licence required if conducting an environmentally relevant activity Permit to work in areas listed on the Environmental Management Register or the Contaminated Land Register Schedule 1 of Environmental Protection Regulation 2008 lists all environmentally relevant activities, their aggregate environmental score and thresholds. The construction of the network may include the following environmentally relevant activities: Environmentally relevant activity 8: Chemical storage System Form 1 Part G) Land identified on the Environmental Management Register or the Contaminated Land Register will require approval from the Environmental Protection Agency. Includes disposing of contaminated soil. System Form 1 Part N) Environmental Protection Agency (could devolve to Local Government) Environmental Protection Agency Aboriginal Cultural Heritage Act 2003 Exploring/surveying proposed project area for the purposes of drafting a Indigenous cultural heritage management plan Obligation to observe duty of care guidelines. Preparation of a Cultural Heritage Management Plan (if required) Aboriginal Cultural Heritage Act 2003/Integrated Planning Act 1997 Native Title (Queensland) Act 1993; Native Title Act 1993 Department of Environment and Resource Management Legislation provides Native Native Title (Queensland) Act 1993, National Native Title Page 18.16

17 Project Permit/approval/ licence required Title claimants an opportunity to comment on construction over waterways and Trustee Reserves Native Title Aboriginal and Torres Strait Islander owned land and identified interests (including areas in which a claim under the Native Title Act has been registered by the National Native Title Tribunal) Description section 26/Native Title Act (Commonwealth) 1993/Aboriginal Land Act (Commonwealth) 1991 Tribunal Responsible authority Department of Environment and Resource Management Generally, Native Title is extinguished over freehold land Nature Conservation Act 1992 Permit required if relevant Dangerous Goods Safety Management Act 2000 Approval for a major hazard facility A permit is required to take, use, keep or interfere with: Native wildlife in an area identified under a conservation plan Cultural or natural resources of a protected area Threatened, rare or common animals Rare or threatened plants. The Nature Conservation (Protected Areas) Regulation 1994 schedules 1 to 6 lists protected areas. As a condition of approval DTMR may be required to provide an environmental offset. Development involving a material change of use of premises, if the premises are for a Major Hazard Facility or Possible Major Hazard Facility is assessable development System Form 1 Part L) Environmental Protection Agency Department of Emergency Services Sustainable Planning Act 2009 (if required for certain activities that are not directly related to the construction of the busway) Approval for material change of use Approval for reconfiguring a lot Approval for operational works Development which is not exempt development may require a development permit for material change of use System Form Part D) Lots may be required to be reconfigured, requiring a development permit. System Form 1 Part F) A development permit may be required for operational works System Form 1, Part E) Local Government (Cairns Regional Council) Local Government (Cairns Regional Council) Local Government (Cairns Regional Council) Page 18.17

18 Project Permit/approval/ licence required Description Responsible authority Resource Entitlement for State Land Water Act 2000 s.206 Riverine Protection Permit Licence to take or interfere with water Building Act 1975 Queensland Heritage Act 1992 Development of a heritagelisted place Vegetation Management Act 1999 Clearing of native vegetation Land Act 1994 Approval for temporary road closure Approval for operational works Permit to occupy When submitting a development application on State land, Resource Entitlement is required from the State Government, or the relevant lease holder Permit to destroy vegetation, excavate or place fill in a watercourse, lake or spring A licence to take or interfere with the flow of water in a watercourse Demolition and removals System Form Part B) Approval is necessary for works on a place identified under the Queensland Heritage Register System Form Part C) Any work involving the clearing of remnant and non-remnant native vegetation on trust land, leasehold land, state land and road reserves as a condition of approval DTMR may be required to provide an environmental offset System Form Part J) Approval for temporary closure of a state controlled road A development permit may be required for operational works System Form 1, Part E) Permission to occupy reserve, road or unallocated state land Department of Environment and Resource Management Department of Environment and Resource Management Department of Environment and Resource Management Local Government Queensland Heritage Council Environmental Protection Agency Department of Environment and Resource Management Department of Environment and Resource Management Local Government (Cairns Regional Council) Department of Environment and Resource Management Page 18.18

19 Project Permit/approval/ licence required Description Responsible authority Cairns Regional Council Local Laws Permits required A range of Local Government (Cairns Regional Council) local laws may be applicable associated with the construction of the transit network.. Local Government (Cairns Regional Council) 18.9 Summary Planning and preservation of the Cairns Transit Network is governed principally by the Transport Infrastructure Act 1994 (Queensland). A range of approvals will be required for preservation of the corridor, and future construction activities and operation under the Sustainable Planning Act 2009, other state legislation and possibly Commonwealth legislation. A general indication of the approvals, permits and licences that may be triggered during the project have been provided in Table 18.2 Approvals Matrix. However, an assessment of the necessary planning applications will need to be undertaken closer to the project delivery date, as changes are likely to occur with the local government planning schemes and planning legislation between now and when construction approval for various stages of the project will be sought. Page 18.19

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