Australia: Mining licences not an ‘access all areas' pass for exploration

Last Updated: 23 May 2016
Article by Breellen Warry and Rebecca Hiscock

Most Read Contributor in Australia, September 2017

On 10 May 2016, Chief Justice Preston of the Land and Environment Court (Court) overturned a decision made last year by the Mining Commissioner in relation to Korean-owned mining company Hume Coal Pty Ltd (Hume Coal accessing land for prospecting, in Martin v Hume Coal Pty Ltd [2016] NSWLEC 51.

The Chief Judge found that access to land is a right within the scope of an exploration licence and accordingly, cannot be exercised within prescribed distances of homes, gardens or "significant improvements" under the Mining Act 1992 (NSW) (Mining Act). The decision sets an important precedent both for landowners whose properties are the subject of an exploration licence, and mining companies who hold such licences and wish to exercise the rights conferred by them.In this case note, we highlight key features of the decision.

This is the second decision by the Mining Commissioner under the Mining Act which has been overturned by the Court. In Hall v O'Brien [2015] NSWLEC 200, the Court also found that the Mining Commissioner had misinterpreted the manner in which access management plans are regulated under Part 10A of the Mining Act.

The facts

Five landowners (Landowners) whose Southern Highlands properties lie within the area of an exploration licence held by Hume Coal received notice under section 142 of the Mining Act of Hume Coal's intention to seek access to each of the Landowners' properties (Notice).  A dispute arose as to whether access could occur within certain distances of various improvements on those properties. Section 31 of the Mining Act prohibits licence holders exercising any rights under an exploration licence within prescribed distances of dwelling houses, gardens or other significant improvements.

Hume Coal contended that its licence conferred only the right to prospect on the land, and accordingly the proximity restrictions applied only in respect of prospecting operations. On this basis Hume Coal argued, and the Mining Commissioner found in the first instance, that access is not a right under the licence but rather granted by the Landowners or imposed pursuant to Part 8 of the Mining Act. This meant that Hume Coal could access any part of the Landowners' properties, irrespective of any improvements. The Landowners disagreed and appealed the Mining Commissioner's decision.

Was access an implied right of the licence?

The Court found that access was an implied right conferred by the licence. Although section 29 of the Mining Act and the conditions of Hume Coal's licence did not expressly confer a right to access, the right to prospect necessarily implies the right to do all things necessary to exercise that right, including accessing all parts of the land by vehicle, transporting equipment for prospecting to and from the land and transporting samples removed from the land for testing.  Furthermore, one of the licence conditions permitted Category 1 prospecting operations, defined under the licence as development to which clause 10(2) of the Mining State Environmental Planning Policy  (Mining, Petroleum Production and Extractive Industries) 2007 (Mining SEPP) applies. Clause 10(2) of the Mining SEPP includes 'accessing areas by vehicle' within its scope.

What are significant improvements?

Having found that the licence included access rights, the exercise of which are restricted by section 31 of the Mining Act, the Court then had to determine whether certain improvements on the Landowners' properties were significant improvements to which those restrictions applied.

The Court determined that the equestrian course, cattle laneways and irrigation pipes were 'substantial' and 'valuable' structures, and hence significant improvements to which section 31 applied.

In relation to the improved pastures and lucerne, the Court highlighted the established common law definition of 'work', being the physical result of labour conducted on land rather than the process of labour itself. Whether an improvement is a 'work' depends on the nature and extent of what has been done, and its significance in relation to the site on which it is situated. The Court found that improved paddocks which are the product of sufficient labour are capable of being defined as a 'work', and hence could be significant improvements to which section 31 applied.

The Court was also asked to determine the relevant date for assessing improvements, as the Landowners had erected fences after receiving Hume Coal's Notice. Notwithstanding Hume Coal's argument, that the date for determining any "significant improvement" under section 31 should be the date the Notice is served, the Court found that the proximity limitations imposed by section 31 apply at the time the rights under the licence are exercised.

What this case means

This case sets an important precedent which constrains mining companies' ability to access land under prospecting licences and throws into sharp relief the conflict between mining companies and landowners. Like prospecting operations, access to land cannot be conducted within certain proximities of dwelling houses, gardens or significant improvements, which include 'works' such as improved paddocks and 'structures' such as an equestrian course, cattle laneways and irrigation pipes.

Moreover, these significant improvements enjoy this protection against access rights under mining licences as at the date those rights are exercised, and not the date Notice is served.

Following the decision, Hume Coal has urged the State Government to review legislation around access to land, to ensure progress in the exploration industry is not impeded. Conversely the Landowners welcomed the decision, commenting that the court's finding restores some balance to a system previously weighted in favour of mining companies 2.


1 Jean Kennedy and Philippa McDonald, ' Five Southern Highlands families win appeal against Hume Coal accessing their land', ABC News (online),10 May 2016 .
2 Peter Ker, ' Paddocks protected in blow to coal miners', Sydney Morning Herald (online), 10 May 2016 .

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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.

Rebecca Hiscock
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 Video
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.