The Mining and Petroleum Legislation Amendment Bill
2014 (Bill) has passed both Houses of Parliament. The Bill
applies to applications pending at the date of assent and the Bill
is currently awaiting assent.
The dramatic changes to be implemented by this Act were
considered in our earlier
update on the Bill. These include:
New "fit and proper person" test
The introduction of a new "fit and proper person" test
to the applicant for authorities dealings (applications to grant,
transfer, renew, restrict operations at or cancel an
Importantly, to meet the new fit and proper person test under s
380A(2)(c), the applicant's status of compliance with
"relevant legislation" has to be satisfactory to the
Further, the new test applies broadly and extends to behaviours
of partnerships and arrangements not expressed to be limited to the
NSW jurisdiction (see ss 380A(2)(n) and (o)).
Authority for coal mining before planning application
An authority must be in place in respect of the area proposed
for mining before a development application or modification request
(Planning Applications) may be made or determined.
This requirement extends only to the area of the Planning
Application proposed for mining. Areas of the development proposed
for mining purposes, or other parts of the development that are not
extraction, are not subject to this requirement.
This requirement applies to the making of the Planning
Application and the determination of Planning Application. The
authority must be in force at both the making of the application
and the determination of the application.
Whilst not stipulated, it is presumed that "in
force" also extends to authorities that have expired, but
in respect of which renewal applications are extant.
These provisions apply retroactively to any development
application (or modification request) which was "made (but not
determined) before the assent of the..." Bill. The Bill is
still awaiting assent.
Accordingly, if the applicant for the Planning Application is
different to the holder of the authority under the Mining Act 1992
(Mining Act) then, by virtue of new section 380AA, there needs to
have been consent from the holder of the authority at the date the
development application was made and when it is determined.
Before it was passed, the Bill was amended to clarify the
process for right of appeal to the Land and Environment Court,
where the Court's determination of whether the new "fit
and proper person" test has been met, is to be implemented by
the original decision maker.
What does this mean?
Applicants of pending applications should review and consider
their position carefully.
This is particularly so where the applicant for the Planning
Application is different to the holder of the authority under the
Mining Act, which is not unusual in some mining joint ventures or
in neighbour mine transactions where one miner is proposing a
dealing with another miner's authority.
In this scenario, it is quite possible that a relevant authority
is in force at the relevant times, but a written consent from the
holder of the authority, which is required to satisfy s 380AA, is
not held by the applicant for the Planning Application. Note that
there have been no amendments to the Environmental Planning and
Assessment Act 1979 (NSW), which clarify the implications for
the Planning Application in this scenario.
In our earlier
update, we looked at other implications of the new law. These
include the need to brief senior management on the new "fit
and proper person" test, and to revisit tenement management
The authorities' acquisition process will also require
review, from due diligence before acquisition or sale, the impact
of the new law on the timing of the acquisition process, through to
the warranties and contractual liabilities provisions.
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.
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