Coexistence between renewable and resource projects in Queensland remains a key issue 

What you need to know

• As renewable project development continues at rapid pace to meet the Queensland Government's ambitious targets, coexistence issues relating to "overlapping" renewable and resource projects continue to be a key concern for industry.
• The current regulatory framework does not adequately manage these coexistence matters. Achieving satisfactory coexistence outcomes for both sectors is critical for the energy transformation.
• To date, the Queensland Government has taken some modest steps to address these issues by expanding the jurisdiction of GasFields Commission Queensland, and re-badging it as "Coexistence Queensland", and adding mapping layers to GeoResGlobe, but further action is necessary.
• In the absence of regulatory reform, industry is developing its own novel solutions to address these matters.

What you need to do

• Industry is developing its own novel solutions to address these matters.
• Until necessary enhancements to the regulatory framework are enacted, the responsibility to achieve effective and workable coexistence outcomes rests with industry to meaningfully collaborate.

Queensland land access and project approvals 2024 year in review

Coexistence of projects – regulatory context

Prior to the renewable energy boom, the mining and gas industry had become accustomed to dealing with other "coexistence" challenges relating to their interaction with landholders (particularly with pastoralists), and with other overlapping resource authority holders. Those interactions are managed within the established regulatory frameworks under the Mineral and Energy Resources (Common Provisions) Act 2014 (Qld) (MERCP Act).

Increasingly, we are now seeing various instances in Queensland of large-scale wind farms and solar projects being developed in and around CSG well-pads and mineral exploration areas. Typically, the renewable projects are developed under a development approval and with land tenure granted by the underlying landholder in the form of a long-term lease. Importantly, this tenure provides the renewable project proponent with the status of an "occupier" under the MERCP Act.

Generally, it is the resource authority holder who holds the liability to compensate any "occupiers" for the "compensatable effect" they suffer. "Compensatable effect" is defined in the MERCP Act by reference to various heads of compensation including those effects that may be suffered by the occupier because of a resource authority holder carrying out its activities on the land, including deprivation of possession of the land's surface, diminution of the land's value, and diminution of the use made, or that may be made, of the land or any improvement on it.

Subject to some exceptions, generally a resource authority holder must not carry out "advanced activities" on private land unless each owner and occupier of the land is a party to a conduct and compensation agreement (CCA) about the advanced activity and its effect.

If the parties cannot agree a CCA, the MERCP Act provides a statutory negotiation pathway involving alternative dispute resolution and an eventual referral to the Land Court for determination, or arbitration.

Further, resource authority holders also hold a liability to pay the occupier's "negotiation and preparation" costs necessarily and reasonably incurred in seeking to enter into a CCA or deferral agreement. These costs generally include legal fees, accounting costs, and valuation costs.

Mining leases are dealt with separately under the Mineral Resources Act 1989 (Qld) and the MERCP Act land access framework does not apply to those interests. Instead, once a mining lease is granted, the land is effectively sterilised from other land uses, and it is an offence to enter the area of the mining lease without consent.

Current regulatory framework is inadequate

The existing regulatory framework is not fit for purpose for the competing interests of resource authority holders and renewable project proponents.

The MERCP Act framework pre-dates the renewable energy transition and was primarily aimed at balancing the rights and interests of farmers with mining and gas development in Queensland.

Resource projects and renewable energy projects have different approval pathways for approval which do not adequately consider existing land uses. Further, the framework dealing with the protection of "restricted land" in the MERCP Act does not adequately contemplate areas or structures associated with renewable energy projects.

The existing framework does not determine any priority for the competing land uses. However, if a resource authority holder is unable to agree a CCA with an occupier (which could be a renewable energy proponent), the statutory negotiation process can be followed with an eventual application to the Land Court to make a determination of compensation which also enables the resource authority holder access rights once that application is made. Owners and occupiers of land do not have the right to refuse access to resource authority holders.

To date, the Land Court has not made a determination in the context of compensation that should be paid to an occupier that is a renewable project proponent. The Land Court did consider some of these issues in a limited manner in Deimel v Phelps & Anor [2022] QLC 6. Ashurst acted for CleanCo in these proceedings.

The status and timing of the project development of each of the projects can influence compensation liability.

There can also be significant safety and operational concerns associated with resource and renewable projects occurring in the same area. For example, we are aware of some cases where wind generation turbines are proposed within very close proximity to operational gas well pads and there are no mandatory codes or standards addressing the minimum set back distances.

Government response and further reform needed

One of the former Government's key areas of focus under the Queensland Resources Industry Development Plan was fostering coexistence and sustainable communities. The Government has completed some of its actions outlined in the Plan, including:

• amending the Land Access Code to include a revised set of coexistence principles;
• expanding the coverage of GasFields Commission Queensland, now called Coexistence Queensland, to include the resources and renewable energy sectors;
• taking steps to capture the renewable energy industry in regional plans as they are updated; and
• creating and maintaining new mapping layers on GeoResGlobe and Queensland Globe that spatially map resource tenures, renewable energy zones and projects, approved and proposed renewable energy projects.

Further reform will be necessary to more holistically deal with the safety and operational concerns arising from these overlapping projects, as well as properly addressing land use priority and disputes.

Industry response

In the absence of regulatory reform, industry is developing its own novel solutions to address these coexistence matters.

Over the past few years, Ashurst has advised numerous proponents (from both the renewable and resources sectors) in the negotiation of agreements to address the various matters associated with coexistence of these projects.

In our experience, open engagement, collaboration and a detailed and robust process for exchange of information is critical to the success of these arrangements. Some of the key issues to be addressed include safety management and incident response, coordination of activities and access, project plans and information sharing, life cycle planning, biosecurity requirements and coordination, and protocols for project completion including rehabilitation.

Another key consideration is of course the impact of these projects on the underlying landholders, and how the proponents can work together to ensure consistent communication and processes with those important stakeholders.

Next steps

The Government recently acknowledged in the Discussion paper for Draft Renewables Regulatory Framework that as population and industries continue to grow, there is increased pressure on land and infrastructure. Competition for land is intensifying in regions where there is increasing demand for renewable energy, infrastructure, industrial and manufacturing opportunities, critical mineral deposits, agricultural production, and need for environmental conservation.

The Crisafulli government acknowledges that as renewable energy development is occurring at a rapid pace, there needs to be a greater focus on proactive consideration of environmental and community propriety where renewables are being built. The Government intends to review all Regional Plans to ensure they are "dynamic and responsive to wider trends and geopolitical change". This Government has said this review will be underpinned by a detailed mapping of competing land uses, which will inform prioritisation of these interests at a regional landscape scale.

Until this review is carried out, and any enhancements to the regulatory framework are enacted, the responsibility to achieve effective and workable coexistence outcomes rests with industry to meaningfully collaborate.

Author: Libby McKillop, Counsel. 

Want to know more?

• Queensland land access and resource approvals year in review 2023, 18 December 2023
• Key trends in land access negotiations 2022, 20 December 2022
• Key trends in land access negotiations 2021, 27 September 2021