Australia: Legislative Amendments To Manage Land Access Arrangements In NSW



The land access provisions of the Mining Act 1992 (Mining Act) and the Petroleum (Onshore) Act 1991 (Petroleum Act) were amended on 9 June 2010 with the commencement of the Mining and Petroleum Legislation Amendment (Land Access) Act 2010 (Amendment Act).

The amendments seek to 'restore certainty for landholders and exploration title holders over land access arrangements'1 following the recent NSW Supreme Court (Court) decision of Brown & Anor v Coal Mine Australia: Alcorn & Anor v Coal Mine Australia Pty Ltd (Brown) and highlight the increasing competition between the agricultural and mining sectors for access to land and related resources.

The Brown case


This case considered the validity of land access agreements affecting farming properties in the Liverpool Plains region, near Gunnedah.

The plaintiffs, Brown and Acorn, each owned farming properties that were subject to an exploration licence held by the defendant, Coal Mines Australia Pty Ltd (CMA) and known as the Caroona Coal Project. Both properties were mortgaged.

In the first instance, the plaintiffs challenged the access arrangements granted to CMA by an arbitrator appointed under the Mining Act in the (former) Mining Warden's court2. An appeal of the Mining Warden's decision was then lodged in the Court on the (then) Mining Warden's jurisdiction in the matter, the construction of various provisions of the Mining Act relating to land access arrangements and conditions under the access arrangements.

Ultimately, the Court had to consider the validity of the land access arrangements for mining exploration where the defendant failed to give the relevant notices required to be given under the Mining Act to 'all landholders', which in this case, included the registered mortgagee. The significant issue to be considered was whether:

  • the Mining Act permitted a prospecting title holder to access land the subject of its prospecting title under a single access arrangement to which all landholders were parties, or
  • there could be a number of access arrangements reached with different landholders, when there was more than one landholder of the property to which access was being sought.


The Court referred to section 140 of the Mining Act (as previously drafted) which provided that a prospecting title holder must enter into 'an access arrangement' with each 'landholder', either by agreement or arbitration, before conducting prospecting operations on the relevant land together with the definition of 'landholder'.

The notice provisions of the Mining Act were also considered and in particular section 142 of the Mining Act (as previously drafted) which requires prospecting title holders to give notice of their intention to obtain an access arrangement 'by written notice served on each landholder of the land concerned'.

After consideration of the relevant legislative provisions the Court ultimately held that a mortgagee was a 'landholder' for the purposes of the Mining Act and that the Mining Act required that each and every landholder (including mortgagees) be a party to one single access arrangement before the prospecting title holder could conduct exploration on relevant land.

Consequently, the access arrangements determined by the arbitrator under the Mining Act were held to be invalid on the basis that they had been reached without the necessary notices being given to all landholders.

In relation to the conditions upon which land access should be given, the Court also held that the Mining Warden was required to properly consider the landholders' request to incorporate certain conditions into the access agreement in accordance with section 141 of the Mining Act.

Those conditions could be imposed regardless of whether it resulted in duplication of the exploration licence conditions, noting that in the event of any inconsistency with exploration licence conditions, the exploration licence conditions would prevail.

Implications of Brown Case

The Brown case led to significant concerns within the mining and oil and gas industries.

In particular, it was perceived that the decision raised questions as to the validity of other existing access arrangements and would complicate negotiations between land owners and exploration companies in relation to land access.

In response to these and similar concerns raised as a result of the Brown case, the NSW Government introduced the Mining and Petroleum Legislation Amendment (Land Access) Bill into to NSW Parliament on 21 April 2010.

The Amendment Act was subsequently assented to on 9 June 2010 following a period of stakeholder consultation and various parliamentary amendments.

Amendment Act

The Amendment Act seeks to simplify land access arrangements by removing, amongst other things, the obligation under the Mining Act and the Petroleum Act for an access arrangement to be made with 'secondary landholders'3 who have a registered interest in the land.

This includes a financial institution holding a registered mortgage over the land (with the exception of a mortgagee in possession, which falls within the definition of a 'landholder') and a utility company that has a registered easement over the land.

Prospecting title holders are also now able to enter into separate land access arrangements where there are multiple 'landholders' of the particular land, as set out in section 140 of the Mining Act and 69C of the Petroleum Act, as amended.

Despite there being no requirement to obtain an access arrangement from 'secondary landholders', the Mining Act and the Petroleum Act continues to offer protection to this class of landholder under other provisions.

For example, prospecting titleholders are required to pay compensation in accordance with Part 13 of the Mining Act for compensable loss and compensation under Part 11 of the Petroleum Act, Secondary landholders are also entitled to immunity from any liability arising from the actions of titleholders under section 383C and 141 of the Mining Act and the Petroleum Act, respectively.

Arguably, owners of significant improvements such as utility companies that own valuable infrastructure are also offered protection from both exploration and mining operations under provisions such as section 31 of the Mining Act and section 72 of the Petroleum Act.


The Amendment Act sought to resolve some of the many issues currently being faced by government authorities in managing competition between stakeholders for access to land, water and mining resources.

The NSW government's rapid response to the Brown decision also demonstrates a commitment to achieve an appropriate balance between exploration rights, owners of land and third parties that have an interest in the land but may not physically use the land.

This response includes ongoing regulatory reform, with the recent public exhibition of the:

Given the steady stream of legal challenges before the Courts involving mining companies, landholders and non-profit organisations we expect there to be further reforms in this area.

1 Mining and Petroleum Legislation Amendment (Land Access) Bill 2010 Legislative Assembly, Agreement in Principle.

2 Jurisdiction to hear all civil proceedings under the Mining Act and the Petroleum Act was transferred from the Mining Warden's Court to the Land and Environment Court on 7 April 2009. These are now known as Class 8 proceedings.

3 The term 'secondary landholder' is defined in paragraph (g1) of the Dictionary to the Mining Act and paragraph (g1) of section 3 of the Petroleum Onshore Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.