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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Pastoral Land Management and Conservation (Renewable
Energy) Amendment Bill 2014
A BILL FOR
An Act to amend the Pastoral
Land Management and Conservation Act 1989.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment
provisions
Part 2—Amendment of Pastoral Land
Management and Conservation Act 1989
4Amendment of
section 3—Interpretation
5Amendment of
section 4—Objects
6Amendment of section 9—Pastoral Land
Management Fund
7Amendment of section 22—Conditions of
pastoral leases
8Amendment of section 31—Alteration of
boundaries
9Amendment of section 32—Resumption
of land
10Insertion of Part 6
Division 4
Division 4—Wind
farms
49AInterpretation
49BMinister may grant
licences
49CApplicant for licence to enter
access agreement with resources tenement holder
49DInteraction between Division and
licence
49ERights
under licence
49FMinister to fix terms and
conditions
49GWaiver
of conditions etc
49HDealing with
licence
49ICancellation of
licences
49JAccess to pastoral land prior to
grant of licence
49KPayments
49LAppeals to
Court
49MExemption
from stamp duty
49NSpecial provisions relating to Murray-Darling Basin
and River Murray Protection Areas
49OApplication of Crown Land Management
Act 2009
49PRights under wind farm licence to
prevail
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Pastoral Land Management and Conservation
(Renewable Energy) Amendment Act 2014.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Pastoral Land Management and Conservation
Act 1989
4—Amendment
of section 3—Interpretation
(1) Section 3(1)—after the definition of the repealed
Act insert:
solar energy facility means a facility for the harnessing of
energy from the sun;
(2) Section 3(1)—after the definition of
variation insert:
wind farm means a facility for the harnessing of energy from
the wind;
wind farm licence means a licence under Part 6
Division 4 authorising the operation of a wind farm (or specified aspects
of a wind farm) on pastoral land, including the construction of access roads and
infrastructure associated with the wind farm.
5—Amendment
of section 4—Objects
Section 4—after paragraph (e) insert:
and
(f) to provide for the operation of wind farms on pastoral land,
concurrently with the land being used for pastoral purposes.
6—Amendment
of section 9—Pastoral Land Management Fund
(1) Section 9(2)—after paragraph (a) insert:
(ab) 95% of any licence fees payable under a wind farm licence granted
under Part 6 Division 4; and
(2) Section 9(5)—delete "The Fund" and substitute:
Subject to subsection (6), the Fund
(3) Section 9—after subsection (5) insert:
(6) The Fund may be applied for the purpose of making a payment under
section 49K.
7—Amendment
of section 22—Conditions of pastoral leases
(1) Section 22(1)(a)—after subparagraph (vi)
insert:
(vii) the lessee's obligation not to hinder, obstruct or interfere with
the holder of a wind farm licence under Part 6 Division 4 who is
exercising, or attempting to exercise, a right under the licence;
(2) Section 22(1)(c)—after subparagraph (ii)
insert:
(iii) the right of the Minister to grant a wind farm licence under
Part 6 Division 4.
(3) Section 22—after subsection (7) insert:
(8) Despite the preceding provisions of this section, the Minister may,
from time to time, issue directions to a lessee for the purposes of the
condition referred to in subsection (1)(a)(vii) (and such directions will
have effect as if they were conditions of the lease).
Note—
Directions might, for example, specify areas in which trees are not to be
planted so as not to interfere with the operation of a wind farm.
8—Amendment
of section 31—Alteration of boundaries
(1) Section 31—after subsection (1) insert:
(1a) If—
(a) part only of the
land subject to a pastoral lease (the relevant land) has been
resumed in accordance with section 32 for the purposes of a solar energy
facility; and
(b) construction of the solar energy facility has not, in the opinion of
the Minister, been substantially completed within 5 years after the date on
which the resumption took effect,
the Minister may, by notice in the Gazette, alter the boundary of the
pastoral lease referred to in
paragraph (a) so
that the relevant land is again included in the lease.
(2) Section 31(2)—delete "in the same notice" and
substitute:
in a notice under this section
9—Amendment
of section 32—Resumption of land
Section 32(3)—delete subsection (3) and
substitute:
(3) The resumption
takes effect—
(a) if the resumption
is for the purposes of a solar energy facility—on a day specified in the
notice in the Gazette, which must be a day falling at least 2 months after
the date on which that notice is given; or
(b) in any other case—on a day specified in the notice in the
Gazette, which must be a day falling at least 6 months after the date on
which that notice is given.
10—Insertion
of Part 6 Division 4
After Part 6 Division 3 insert:
Division 4—Wind farms
49A—Interpretation
In this Division—
access agreement, in relation to pastoral land over which a
resources tenement is held, means an agreement between an applicant for a wind
farm licence relating to the land and the holder of the resources tenement for
access to the land by the resources tenement holder during the construction and
operation of the wind farm;
ERD Court means the Environment, Resources and Development
Court;
prescribed interested party, in relation to pastoral land,
means the following:
(a) the lessee;
(b) the holder of a resources tenement over the land;
(c) if there is a native title declaration for the land—the
registered representative of the native title holders and the relevant
representative Aboriginal body;
(d) if there is no native title declaration for the land—all persons
who hold, or may hold, native title in the
land;1
Note—
1 For method of service see Part 5 Native
Title (South Australia) Act 1994.
related body corporate has the same meaning as in the
Corporations Act 2001 of the Commonwealth;
resources tenement means—
(a) a mining tenement (within the meaning of the Mining
Act 1971); or
(b) a tenement under the Petroleum
and Geothermal Energy Act 2000.
49B—Minister may grant
licences
(1) Subject to this section, the Minister may grant wind farm licences in
relation to pastoral land.
(2) Before deciding
whether to grant a licence, the Minister must consult with, and have regard to
the views of, the prescribed interested parties.
(3) The Minister must provide the prescribed interested parties with
information that, in the opinion of the Minister, is relevant and necessary for
the purposes of consultation.
(4) If an application
for a wind farm licence relates to pastoral land over which a resources tenement
is held, the Minister may not grant the licence unless the applicant has entered
into an access agreement under
section 49C with the
holder of the resources tenement.
(5) If the Minister has not determined an application for a licence within
3 months (or such longer period as may be agreed between the Minister and
the applicant), the application will be taken to have been refused.
49C—Applicant for licence to enter access agreement
with resources tenement holder
(1) For the purposes of
section 49B(4), an
applicant for a wind farm licence relating to pastoral land over which a
resources tenement is held and the holder of the resources tenement must
negotiate in good faith with a view to entering into an access
agreement.
(2) If either of the negotiating parties requests the ERD Court to do so,
the Court must mediate between the parties to assist in obtaining their
agreement.
(3) If agreement between the negotiating parties is not reached within
6 months from when the negotiations were initiated, either party may apply
to the ERD Court for a determination.
(4) On application under this section, the ERD Court may—
(a) make a determination in relation to access to the land by the
resources tenement holder during the construction and operation of the wind farm
(and a determination of the Court is to be taken to be an access agreement
entered into between the parties for the purposes of this Division);
and
(b) make other orders that the ERD Court considers to be appropriate in
the circumstances.
(5) An access agreement entered into for the purposes of this Division is
binding on, and enforceable by, a person to whom a wind farm licence or a
resources tenement is transferred or assigned as if the person were a party to
the agreement.
(6) A party to an access agreement who believes that the other party (the
respondent) has contravened, or failed to comply with, a term of
the agreement may apply to the ERD Court and the ERD Court may, if satisfied
that the respondent is in default, make 1 or more of the following
orders:
(a) an order that the respondent to take specified action to comply with
the agreement or to rectify a situation caused by the respondent;
(b) an order that the respondent to pay compensation for loss or damage
caused by a breach or a failure to comply with the agreement;
(c) any other order that the ERD Court considers to be appropriate in the
circumstances.
49D—Interaction between Division and
licence
The powers of the Minister under this Division in relation to a wind farm
licence are in addition to, and do not derogate from, the provisions of the
licence but where a provision of the licence is inconsistent with this Act,
the Act prevails to the extent of the inconsistency.
49E—Rights under licence
(1) A wind farm licence may grant such rights as the Minister considers
necessary for the proper functioning of the wind farm to which the licence
relates and may include the right to exclude the lessee or any other person from
infrastructure associated with the wind farm (provided that the licence cannot
prevent the lessee making reasonable use of access roads constructed in
accordance with the licence).
(2) A wind farm licence may grant rights in relation to the operation
of—
(a) the wind farm as a whole; or
(b) specified aspects of the wind farm.
49F—Minister to fix terms and
conditions
(1) Subject to this
Act, the terms and conditions on which wind farm licences will be granted or
renewed under this Act (including the licence fees payable under licences) will
be as fixed by the Minister.
(2) The Minister may, with the consent of the licensee, vary the terms and
conditions of a licence.
(3) Subject to
subsection (4), a
licence must include—
(a) a condition that
the licensee provide the prescribed interested parties with information on an
ongoing basis regarding—
(i) the proposed
location and area of access roads and infrastructure associated with the wind
farm; and
(ii) planned activities on the land (including construction of the wind
farm) to be conducted under the licence; and
(b) conditions ensuring
that a proper process is put in place, during the term of the licence, for the
eventual decommissioning of the wind farm and rehabilitation of the wind farm
site.
(4) If more than
1 licence is granted in relation to a wind farm, only 1 of the
licences must include the conditions referred to in
subsection (3)(a)(i)
and
(b) (and the Minister
may, in his or her absolute discretion, determine which of the licences will
include the conditions).
(5) A licence
(other than a licence granted to a Crown agency) must—
(a) be granted for a term of at least 25 years; and
(b) give the licensee a right to renew the licence for a term of at least
25 years.
(6) In determining
the licence fees payable under a licence, the Minister must not take into
account the value of any work carried out by the licensee in relation to the
land or any other improvements on the land that do not belong to the
Crown.
49G—Waiver of conditions etc
Despite any other provision of this Act or a provision contained in a wind
farm licence, the Minister may, if satisfied that it would be reasonable in the
circumstances—
(a) waive a breach of, or compliance with, a condition of a licence
unconditionally or subject to conditions; or
(b) waive, reduce or remit any licence fees payable under a licence or may
allow any licence fee, or part of a licence fee, to be paid at a time other than
that specified in the licence.
49H—Dealing with licence
(1) Subject to this section and the conditions of the wind farm licence,
the licence cannot be transferred, assigned, mortgaged, sublet or otherwise
dealt with without the consent of the Minister.
(2) If the Minister has consented to a wind farm licence being mortgaged
under this section, the mortgagee may exercise rights pursuant to the mortgage
agreement in relation to the licence without the further consent of the Minister
if notice, in writing, of the proposed exercise of rights has been given to the
Minister.
(3) A wind farm licence granted to a body corporate may be transferred or
assigned to a related body corporate without the consent of the Minister if
notice, in writing, of the proposed transfer or assignment has been given to the
Minister.
(4) If the licensee transfers or assigns the licence—
(a) all accrued and accruing liabilities to the Crown pass to the
transferee or assignee; and
(b) any such liabilities that had accrued before the date of the transfer
or assignment may be enforced against the transferor or assignor (who will be
regarded as jointly and severally liable with the transferee or
assignee).
49I—Cancellation of licences
(1) Subject to
subsection (2),
the Minister may, by notice in writing to a licensee, cancel a wind farm licence
if—
(a) the Minister is
satisfied that a condition of the licence has been breached; or
(b) the Minister is not
satisfied (on the basis of evidence provided by the licensee) that the licensee
has achieved the critical progress milestones specified in
subsection (3);
or
(c) the licensee requests the cancellation.
(2) The Minister
cannot cancel a licence under
subsection (1)(a)
unless satisfied—
(a) that the licensee has been allowed a reasonable opportunity to make
good the breach but has failed to do so; or
(b) that cancellation is necessary in order to prevent, arrest or minimise
damage to or deterioration of land associated with the wind farm.
(3) For the purposes of
subsection (1)(b)
the following critical progress milestones must be achieved by a
licensee:
(a) within 3 years after the grant of the licence, the licensee
must—
(i) have financing for construction of the major components of the wind
farm approved; and
(ii) have executed contracts for the construction of the major components
of the wind farm;
(b) within 5 years after the grant of the licence, the licensee must
have all wind turbines erected and have completed the turbine commissioning
tests.
(4) Subject to the regulations, no compensation is payable by the Crown in
respect of the cancellation of a licence under this section.
49J—Access to pastoral land prior to grant of
licence
(1) A person who
intends to apply for a wind farm licence may, with the approval of the Minister,
enter and occupy pastoral land—
(a) to conduct any investigations or tests, temporarily install any
devices, or take any samples, for the purposes of making such application (or
determining whether to make such application); or
(b) for a purpose approved by the Minister.
(2) A person who intends to enter and occupy pastoral land under
subsection (1) must
give the prescribed interested parties at least 14 days notice of his or
her intention to enter and occupy the land.
(3) If the Minister
grants an approval under this section to a person to enter and occupy pastoral
land, no application may, for the period of 2 years and 6 months
commencing from the granting of the approval, be made by another person to the
Minister for an approval under this section in respect of that land.
(4) The Minister may, on application by a person granted an approval under
this section, extend the period of 2 years and 6 months referred to in
subsection (3) so
that that subsection would apply in relation to the land for a further period of
3 years from the granting of the application for the extension, if the
Minister is satisfied that the person has developed a plan for a wind farm on
the land and can fund completion of that plan.
(5) Nothing in this section requires a person granted an approval under
this section to disclose to the Minister or any other person any information
collected pursuant to the approval.
(6) An approval granted to a body corporate under this section will be
taken to apply to a related body corporate on the related body corporate giving
notice, in writing, to the Minister of its intention to exercise rights under
the approval.
49K—Payments
(1) Subject to
subsection (2), the
Minister must authorise the payment (on an equitable basis) of an amount or
amounts from the Fund to the prescribed interested parties if—
(a) an approval is granted to a person under
section 49J to enter and
occupy pastoral land; or
(b) a wind farm licence is granted in relation to pastoral land,
(and the prescribed interested parties are not entitled to any other
payment or compensation under this Act in respect of the wind farm).
(2)
Subsection (1) does
not apply to a prescribed interested party that is the holder of a resources
tenement over the land.
49L—Appeals to Court
(1) A person who is dissatisfied with a decision made under this Division
may appeal against the decision to the Court.
(2) Subject to
subsection (3),
an appeal under this section must be instituted within 21 days after notice
of the relevant decision is given to the appellant.
(3) If the reasons
of the Minister are not given to the appellant in writing at the time of making
the decision and the appellant (within the period specified in
subsection (2)
as the time within which an appeal may be instituted) requires the Minister to
state the reasons in writing—
(a) the Minister must state in writing the reasons for the decision;
and
(b) the time for instituting an appeal runs from the time at which the
appellant receives the written statement of those reasons.
(4) An order for costs cannot be made against an appellant unless the
Court is satisfied that the appellant's conduct in relation to the proceedings
was frivolous, vexatious or calculated to cause delay.
(5) In this section—
Court means the Administrative and Disciplinary Division of
the District Court.
49M—Exemption from stamp duty
The grant or renewal of a wind farm licence is exempt from stamp
duty.
49N—Special provisions relating to Murray-Darling
Basin and River Murray Protection Areas
(1) If a proposed wind farm licence relates to an area within the
Murray-Darling Basin, the Minister must, in considering whether to grant the
licence, take into account the objects of the River
Murray Act 2003 and the Objectives for a Healthy River
Murray under that Act.
(2) If a proposed licence relates to a River Murray Protection Area
under the River
Murray Act 2003 and is within a class of licences prescribed by the
regulations for the purposes of this provision (which class may be prescribed so
as to consist of all such licences), the Minister must, before deciding whether
to grant the licence—
(a) consult with the Minister to whom the administration of that Act is
committed; and
(b) comply with the Minister's directions (if any) in relation to the
licence (including a direction that the licence not be granted, or that if it is
granted, then the licence be subject to conditions specified by the
Minister).
49O—Application of Crown Land Management
Act 2009
(1) Part 3 Division 6 of the Crown
Land Management Act 2009 does not apply to a wind farm
licence.
(2) Part 4 Division 3 of the Crown
Land Management Act 2009 applies to a wind farm licence, and to the
holder of that licence, as if the licence granted the holder a right in relation
to Crown land under that Act.
49P—Rights under wind farm licence to
prevail
(1) Despite section 62 (but subject to
subsection (2)), a
licence or other interest in land may not be granted by or under any other Act
if to do so would be inconsistent with the rights of the holder of a wind farm
licence under this Act.
(2) Nothing in this
section prevents—
(a) the renewal of a licence or other interest in land; or
(b) the grant of a licence or other interest in land—
(i) that is associated with a licence or interest in land granted before
the commencement of this Division; or
(ii) with the consent of the holder of the relevant wind farm
licence.