Australia: Mining lease implications of planning White Paper and "significant improvement" case

Tenements Update: July 2013
Last Updated: 12 July 2013
Article by Jennifer Anderson, Andrew White and Alan McKelvey

This month's update discusses the tenement implications of the NSW Government's White Paper for a new planning system, Exposure Draft Planning Bill 2013 and the Work Health and Safety(Mines) Bill 2013, which were all issued in April 2013.

We also review two Land & Environment Court (LEC) decisions.

Lightning Ridge Miners Association Ltd v Slack-Smith and what this means for landholders and miners, especially the Mining Act 1992 (NSW) (Mining Act) "significant improvement" concept of "other valuable work".

Peabody Pastoral Holdings Pty Limited v Mid-Western Regional Council and what this means for miner landholders, on re-categorising residential or farmland rateable land as "mining" in an order for costs case.

White Paper – a new planning system for NSW

On 16 April 2013, the NSW Government issued a White Paper for a new planning system in NSW, together with draft legislation comprising an Exposure Draft Planning Bill 2013 (Planning Bill) and Planning Administrative Bill 2013.

Under the new planning system, mining will continue to be considered a State Significant Development (SSD) requiring an Environmental Impact Statement (EIS). Mining is also a category of development that will always be "merit assessed" on a case by case basis (much of the remainder of the development approvals system is moving to code compliant "automatic" approval).

The Minister remains the consent authority for SSDs and has the power to delegate to the Planning Assessment Commission and, in limited cases, to senior officers of the Department of Planning & Infrastructure.

State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 is expected to remain in place, largely unchanged in the short term, although what form the mining specific NSW Planning Policy will ultimately take is uncertain at this point.

There are two features of the new planning system and proposed legislation that will impact Mining Leases.

Consistency in approvals - Mining Leases

The White Paper identifies approvals which must be issued consistently with a SSD planning approval—this includes the grant of a Mining Lease under the Mining Act.

The Planning Bill provides that a Mining Lease cannot be refused if it is required to carry out a development that has already received planning approval. The Mining Lease must be substantially consistent with the planning approval and its conditions. See s 6.3 of the Planning Bill.

This is essentially the same as the current position under the former Part 3A Environmental Planning and Assessment Act 1979 and the existing SSD regime.

Proposed tenements affecting public roads

Under the new planning system, it is proposed that the Mining Act will be amended to include special provisions that will apply in circumstances where the Planning Assessment Commission, or the LEC on appeal, approves the closing of a road that is affected by a SSD that also requires the grant of a Mining Lease under the Mining Act.

Following the issue of a Mining Lease, the Minister administering the Mining Act may transfer the road to the miner, and on transfer, the miner must pay the roads authority compensation in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 "as if" there had been a compulsory acquisition.

What does this mean for you?

This proposal should make it easier for miners to effect road closures (important where the closure is time sensitive) for planning approval condition compliance, mine safety requirements, the opening of related relocated roads (if conditioned on other road closure), or access to relevant (former road) land for mining. Similar provisions already apply when a licence for a pipeline is granted under the Pipelines Act 1967.

It will be some time before the new NSW planning system takes effect. The White Paper provides that planning and assessment processes that began before the new legislation commenced will be dealt with under the current statutory procedures and planning instruments.

Introduction of the WHS (Mines) Bill

The Work Health and Safety (Mines) Bill 2013 (WHS Mines Bill), was introduced into NSW Parliament on 23 May 2013 and has now been passed by both houses. The bill will replace the existing legislation that regulates WHS in the mining industry in NSW. It will repeal a number of pieces of legislation, including the Mines Health and Safety Act 2004 (NSW) and the Coal Mine Health and Safety Act 2002 (NSW) (CMHS Act).

The mining activities test

The WHS Mines Bill will apply to workplaces that are "mines" where "mining operations" are carried out. Mining operations are defined as "activities carried out for the purposes of exploring for minerals, extracting minerals from, or injecting minerals into, the ground. Mining operations also include other activities carried out in connection with, and in the vicinity of those activities (such as storing or processing extracted materials)".

This application may be broader in scope than the current laws. This means that mine safety requirements will apply to activities carried out in connection with, adjoining to, or in the vicinity of mining activities at a site, as well as construction activities relating to existing or potentially proposed new mining operations.

What does this mean for you?

The implications of the activities test should be considered when identifying relevant areas for proposed tenement applications and proposed planning approval applications.

The Bill is currently awaiting assent and will commence at a later date by proclamation.

Lightning Ridge case – "significant improvement"

Lightning Ridge Miners Association Ltd v Slack-Smith [2013] NSWLEC 1063, decision 16 April 2013

In Lightning Ridge Miners Association Ltd v Slack-Smith, the LEC considered the "significant improvement" concept of "other valuable work".

Under s 62 of the Mining Act, landholders asserting a significant improvement can prevent the grant of a Mining Lease without landholder consent, and disputes over whether the grant is prevented are determined by the LEC.

This case concerned a dispute between the Lightning Ridge Miners Association and the landholders of Muttabun, a Western Lands Lease grazing property, as to whether or not an access road constituted a significant improvement on part of the property subject to a Mining Lease Application (MLA). The MLA, which was lodged by the Association in mid-2010, was based on an earlier mineral claim.

Under the Mining Act, significant improvement is defined as "any substantial building, dam, reservoir, contour bank, graded bank, levee, water disposal area, soil conservation work or other valuable work or structure".

The Court assessed whether the road was a significant improvement in both April 2013 and at the "relevant date", which was May 1996, when the original mineral claim was granted. This included consideration of very limited evidence of a site visit, old photographs, property management plans, council maps, earlier Mining Warden determinations and the conflicting recollection of individuals.

In considering s 62(1)(c) of the Mining Act, the Court held that the following may constitute "other valuable work": fences, firebreaks when maintained and functional, the combination of a fence and a firebreak, and a well-maintained access track.

In this case a "cleared ground feature" and "rough bush track" fell short of this standard and were found not to attract protection under s 62.

The Court also noted as relevant to its determination that the landholders had another well-maintained track available to them a short distance away, and that the landholders had not, in evidence, ascribed value to the disputed land. The landholders conceded that they could not object to the grant of the lease on the basis of a fence that was 10 cms clear of the MLA boundary.

Implications of this decision

The protection of s 62 of the Mining Act applies where the relevant improvement exists in the relevant status (functional and well maintained) on the relevant date.

Whether a landholder (which may be a miner) may defend their land from a Mining Lease application can depend on what information is available on the "significant improvement" at a relevant tenement application date, which may be many years before the right is asserted in the LEC.

The case reinforces the need to maintain good records relating to existence and state of improvement, to enable potential objection rights to possible future Mining Leases at the point an application (usually an exploration licence application) is first made affecting the land.

Where the landholder is a coal miner, who may have plans to mine its freehold where there is no current tenement, the miner should also consider approaching the Department of Resources & Energy (DRE) to register its interest in the coal on the DRE Register of Interests maintained by DRE's Industry Coordination Unit. Registration informs DRE of the miner's interest but does not give any legislative right or title.

Peabody Pastoral – re-categorisation of land leads to cost order

Peabody Pastoral Holdings Pty Limited v. Mid-Western Regional Council [2013] NSWLEC 86, decision date 6 June 2013

In this decision the LEC confirmed that the Mid-Western Regional Council had erred in law in re-categorising residential or farmland rateable land as "mining".

In this case, the Council's triggers to consider a re-categorisation of a piece of land as mining included the grant of an exploration licence, mining lease and development consent.

In ordering the Council to pay the rate payer's costs, the Court held that it was unreasonable for the Council to hold the following alone as sufficient to constitute a change in the use of land to re-categorise rates to mining:

  • noise affectation of parcels of land by a mine
  • change in ownership of noise-affected land purchased by the miner
  • the purpose of the miner's purchase of the noise affected land being under a development consent land acquisition obligation, and
  • the miner holding land for a mining purpose, where it was not used for a mining purpose.

Implications of this decision

The case reinforces the need for miner landholders to scrutinise all council rate invoices for correct categorisation of rates. The case follows a number of instances in recent years of councils in mining areas incorrectly re-categorising land (and thereby increasing rates in it) which did not proceed to hearing or court. We assist clients in evaluating land for council rating purposes and act for mining landholders in rate challenge LEC proceedings.

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 Mondaq.com.

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

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
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”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions