The following is designed to give information regarding landholders rights under titles granted via the provisions of the Mining Act 1992. 

Table of contents

Part 1: Exploration Licences and Assessment Leases

1.1. Access Arrangements
1.2. Compensation
1.3 Protection of Houses, Gardens and Improvements
1.4 Environmental Assessment Permits

 

Part 2: Mining Leases

2.1 Section 62 - Exclusion of Houses, Gardens and Improvements
2.2 Access to the Surface of a Mining Lease or the Surface above a Mining Lease
2.3 Compensation
2.4 Objections to the grant of Mining Leases on the basis that the affected area is Agricultural Land or has Valuable Works and Structures.
2.5 Approvals under the Environmental Planning and Assessment Act 1979
2.6 Objections under the Mining Act 1992

 

Part 3: Mineral Claims (outside Mineral Claims Districts)

3.1 Service of Notice
3.2 Objection as to agricultural land
3.3 Protection of Dwelling-Houses, Gardens and Improvements
3.4 Approvals under the Environmental Planning and Assessment Act 1979
3.5 Rights of way
3.6 Compensation for Rights of way
3.7 Right of access to water
3.8 Use of water, timber and pasturage etc
3.9 Compensation arising under mineral claim 

 

General immunity of landholders. (section 383C).

The landholder of land within which any person (other than the landholder) is authorised to exercise any power or right:

1. by or under this Act, or
2. by any authority, mineral claim, opal prospecting licence or permit under this Act, 

is not subject to any action, liability, claim or demand arising as a consequence of that person’s acts or omissions in the exercise, or purported exercise, of any such power or right.

The definition of ‘land’ and landholder’ referred to in this document is as described in the dictionary of the Mining Act 1992 (www.legislation.nsw.gov.au).

Part 1: Exploration Licences and Assessment Leases

Please note that Exploration Licences and Assessment Leases are referred to in this document as "Prospecting Titles".

1.1. Access Arrangements

The holder of a prospecting title may not carry out prospecting operations other than in accordance with an access arrangement with the landholder (Section 140). These arrangements can be oral or written, (although written arrangements would often be preferable) and can be entered into before or after the grant of the title. Such arrangements may provide for the following (Section 141):

• periods during which access may be permitted
• parts of the land on which prospecting may be undertaken
• kinds of prospecting that may be undertaken
• conditions to be observed during prospecting
• protection of the environment
• compensation to be paid to the landholder (see Note below)
• manner of resolving disputes
• manner of varying the agreement
• any other matter the parties may wish to include

Note: Compensation can be agreed to under the access arrangement or determined separately. The issue of compensation is dealt with in 1.2.

If the holder of a prospecting title wishes to enter your land a written notice must be served on you giving notice of the holders intention to obtain an access arrangement. The notice must contain a plan and description of the area of land over which access is sought and a description of the prospecting methods intended to be used.

If an agreement with regard to an access arrangement cannot be reached within 28 days after the service of the notice, the holder may, by further notice, request your agreement to the appointment of a mutually acceptable arbitrator. If after 28 days from the service of this second notice the parties have been unable to agree on the appointment of an arbitrator, either party can apply to the Director-General to appoint an arbitrator from the Ministers panel of arbitrators. The arbitration process is covered by Sections 143 to 158.

An access arrangement that is determined by an arbitrator must specify the compensation to which the landholder is entitled to under Section 263 or 264.

1.2. Compensation

On the granting of a prospecting title, a landholder (as defined in the dictionary in the Mining Act 1992, includes normal landowners together with occupiers of Crown land under various tenures) of any land, and occupier of any crown land, becomes entitled to compensation for any "Compensable loss" suffered, or likely to be suffered, as a result of the exercising of rights conferred by the title (Sections 263 and 264). Where an access arrangement is entered into, compensation could be covered by this arrangement in which case a separate agreement covering compensation is not required. Entitlement to compensation is not limited to the actual land covered by the prospecting title.

“Compensable loss” is defined as loss caused, or likely to be caused, by (Section 262):

(a) damage to the surface of land, to crops, trees, grasses, or other vegetation (including fruit and vegetables) or to buildings, structures or works, being damaged, which has been caused by or which may arise from prospecting;

(b) deprivation of the possession or of the use of the surface of land or any part of the surface; or

(c) severance of land from other land of the landholder; or

(d) surface rights of way and easements; or

(e) destruction or loss of, or injury to, disturbance of or interference with, stock; or

(f) or damage consequential to any matter referred to in (a)-(e) above.

The holder of a prospecting title may agree with a landholder as to the amount of compensation payable. Such an agreement must be signed by both parties. As mentioned above, compensation agreed to under an access arrangement is valid as compensation for the purposes of Section 263 and 264. An access arrangement determined by an arbitrator must specify the compensation assessed by the arbitrator.

Compensation is also payable to landholders under an Environmental Assessment Permit and this is covered in Sections 269 and 270.

1.3 Protection of Houses, Gardens and Improvements

The holder of a prospecting title may not exercise the rights conferred by that title within 200 metres of a dwelling house that is the principal place of residence of the person occupying it, 50 metres of a garden or over any improvements (Sections 31 & 49), unless with the written consent of the owner of the dwelling house, garden or improvement (and in the case of the dwelling house, the written consent of its occupant). Any dispute is referred to the Mining Warden for inquiry and determination on the matter. Please note Section 31(4) advises this section does not apply with respect to a dwelling-house, garden or improvement is owned by the holder of the exploration licence, or if the holder is a corporation, by a related corporation.

1.4 Environmental Assessment Permits

A person who proposes to carry out an assessment of likely environmental effects of activities to be carried out under a prospecting title may apply to the Warden for an Environmental Assessment Permit (Section 252). The Warden may hold an inquiry in order to determine such an application.

Part 2: Mining Leases

2.1 Section 62 - Exclusion of Houses, Gardens and Improvements

A mining lease may not be granted over the surface of any land within 200 metres of a dwelling house that is the principal place of residence of the person occupying it, 50 metres of a garden or over any improvements (Section 62), unless with the written consent of the owner of the dwelling house, garden or improvement (and in the case of the dwelling house, the written consent of its occupant). Houses, gardens and improvements must have been in existence prior to the relevant date, as defined in Section 62(5), in order to obtain the protection afforded by Section 62. In most cases the relevant date is the date that the application for the exploration licence (that preceded the mining lease application) was lodged. Any dispute is referred to the Mining Warden for inquiry and determination on the matter.

A mining lease may not be granted below the surface of the lands described above except at such depths and subject to such conditions, as the Minister considers to be sufficient to minimise damage to the surface.

2.2 Access to the Surface of A Mining Lease or the Surface above a Mining Lease

Once a mining lease is granted, the holder may not exercise any rights under the lease on the surface of any land without a valid compensation agreement (Section 265). The issue of compensation is dealt with separately in 2.3.

The holder of a sub surface lease may, with the consent of the landholder, carry out prospecting operations on the surface of the land. A prospecting title is not required for such exploration, however the holder must notify the Director General (Section 81). Nevertheless, lease holders often take out exploration licences over sub surface leases. Access to the land is then through an access arrangement, as outlined under prospecting titles.

2.3 Compensation

On the granting of a mining lease, a landholder becomes entitled to compensation for "compensable loss" suffered, or likely to be suffered, as a result of the exercising of rights conferred by the lease (Section 265). Such compensation is not limited to land covered by the lease.

“Compensable loss” (Section 262) is defined as loss caused, or likely to be caused, by:

damage to the surface of land, to crops, trees, grasses, or other vegetation (including fruit and vegetables) or to buildings, structures or works, being damaged which has been caused by or which may arise from prospecting or mining operations; or

(a) deprivation of the possession or of the use of the surface of land or any part of the surface; or

(b) severance of land from other land of the landholder; or

(c) surface rights of way and easements; or

(d) destruction or loss of, or injury to, disturbance of or interference with, stock; or

(e) damage consequential on any matter referred to in paragraph (a) - (e)

(f) or damage consequential to any matter referred to in (a)-(e) above.

This definition does not include loss that is compensable under the Mine Subsidence Compensation Act, 1961.

As mentioned in Section 2.2, the holder of a mining lease may not exercise any rights under the lease on the surface of the land, without a valid compensation agreement with the landholder. Such an agreement must be signed by both parties. If an agreement can not be reached, either party may apply to the Warden to assess the amount of compensation payable.

2.4 Objections to the grant of Mining Leases on the basis that the affected area is Agricultural Land or has Valuable Works and Structures.

Once an application for a mining lease which includes the surface is lodged, the applicant is required to serve notice of the application on any landholders (Schedule 1, Clauses 20 & 21 of the Mining Act).

The land holders may then object to the grant of a mining lease on the basis that the land is agricultural land or may make a claim that something on the land is a valuable work or structure. Valuable works and structures are improvements in terms of Section 62 of the Mining Act.

Any such objections or claim must be made in writing to the Deputy Director General of the Department of Primary Industries (Mineral Resources) within 28 days of the service of the notice by the applicant.

Objections on the basis of agricultural land are referred to DPI Agriculture Division for determination. If the applicant for the mining lease is the holder of an exploration licence or mineral claim over the same area, then, in order for the area to be determined as agricultural land, the area must also have been agricultural land at the time of the application for the exploration licence or mineral claim. In other words, any agricultural improvements made to the land since the grant of the original title, cannot be taken into account when determining whether the land is agricultural land.

If an area is determined to be agricultural land, a mining lease can not be granted over the surface of the area without the written consent of the landholder, except for provision of access to other parts of the land to which the lease applies.

Claims in relation to valuable works and structures may in some cases, require individual items to be specified. Such claims are referred to the applicant for consideration and they may in turn object to the claim. Any such objection is referred to the Warden for inquiry and report determination (Schedule 1 Clause 23 B). 

2.5 Approvals under the Environmental Planning and Assessment Act 1979

All mining projects require environmental assessment under the Environmental Planning and Assessment Act1979 (EP&A Act) before a mining lease can be granted. Development consent means a development consent under Part 4 of the EP&A Act or an approval under Part 3A of that Act.

Where a Local Environmental Plan (LEP) exists, and this applies to almost all of the State, these consents are given under Part 3/4 of the EP&A Act by a "Consent Authority" which would be the Local Council or Minister for Planning, depending on the type and scale of the mining project. An application for development consent usually requires the preparation and public display of an Environmental Impact Statement. Members of the public are entitled to make submissions to the Consent Authority and these submissions must be taken into account in determining consent.

Where a Local Environment Plan does not exist the provision of Part 5 of the EP&A Act apply, and the Minister for Mineral Resources would normally be the determining authority.

2.6 Objections under the Mining Act 1992

Before granting a mining lease, a notice must be published in appropriate newspapers (Schedule 1 Clause 24 (3 &4)). On the basis of such a notice, objections may be lodged to the grant of a mining lease by any person who is not entitled under the EP&A Act to make a submission in relation to the granting of development consent that is required before the land concerned may be used for the purpose of obtaining minerals or for one or more mining purposes (Schedule 1 Clause. 28).

In reality, this means that in most cases people are not entitled to object under the Mining Act, as almost all mining lease grants require development consent under Part 3/4 of the EP&A Act where people are entitled to make a submission in relation to the granting of development consent.

Objections under the Mining Act may only be made where the provisions of Part 5 of the EP&A Act apply, or where a lease is being granted as a consequence of a variation to an existing development consent under Section 102 of the EP&A Act, and opportunities to put in submissions are not available. Any such objection must be accompanied by the appropriate fee.

Objections under the Mining Act are referred to the Warden for determination.

Part 3: Mineral Claims

3.1 Service of Notice – Section 177

Before applying for a mineral claim an intending applicant must serve a notice on the landholder.

3.2 Objection as to agricultural land - Section 179

A landholder who is entitled to use land for agricultural purposes and who is served with a notice under section 177 may object to the granting of a mineral claim over the land on the basis that the land is agricultural land.

Such an objection must be in writing and must be lodged with the mining registrar for the mining division within which the land is situated within 28 days after the notice is served.

On receipt of an objection, the mining registrar is to refer the objection to the Director-General of the Department of Primary Industries Agriculture who is to determine the objection in accordance with Schedule 2, which defines Agricultural Land for the purposes of the Mining Act 1992.

If an area is determined to be agricultural land, a mineral claim can not be granted over the surface of the area.

3.3 Protection of Dwelling-Houses, Gardens and Improvements - Section 188

A mineral claim may not be granted over the surface of any land:

(a) on which, or within the prescribed distance of which, is situated a dwelling-house that is the principal place of residence of the person occupying it or a woolshed or shearing shed which is in use as such, or

(b) on which, or within the prescribed distance of which, is situated any garden, or

(c) on which is situated any improvement (being a substantial building, dam, reservoir, contour bank, graded bank, levee, water disposal area, soil conservation work or other valuable work or structure) other than an improvement constructed or used for mining purposes and for no other purposes, except with the written consent of the owner of the dwelling-house, woolshed, shearing shed, garden or improvement (and, in the case of the dwelling-house, the written consent of its occupant).

The prescribed distance is:

• 200 metres (or, if a greater distance is prescribed by the regulations, the greater distance) for the purposes of subsection (a), and
• 50 metres (or, if a greater distance is prescribed by the regulations, the greater distance) for the purposes of subsection (b).
  • A written consent once given is irrevocable.
  • A dwelling-house, woolshed, shearing shed, garden or improvement that was not in existence when the application for the mineral claim was lodged is not entitled to the protection given by Section 188.
  • A mineral claim may not be granted over land below the surface of land referred to in this section except at such depths, and subject to such conditions, as the mining registrar considers sufficient to minimise damage to that surface.

The holder of the mineral claim, the owner of the dwelling house, garden or improvement or the occupier of the dwelling-house may apply to a Warden’s Court for a determination should a dispute arise. - Section 188(5).

Please note: Different distance provisions apply to mineral claims in the Lightning Ridge Mineral Claims District.

3.4 Approvals under the Environmental Planning and Assessment Act 1979

If the area sought is within a Local Environment Plan that requires development consent for mining, the applicant must, in accordance with Departmental policy, obtain such consent from the consent authority (usually the local Council) before a mineral claim will be granted.

Where a Local Environment Plan does not exist or development consent is not required, the provisions of Part 5 of the Environmental Planning and Assessment Act apply. The Mining Registrar would normally be the determining authority.

3.5 Rights of way - Section 211

The holder of a mineral claim is entitled to a right of way (to be marked out in the manner prescribed by the regulations) between the claim area and the nearest practicable point of a public road. However, to utilise the right of way, the holder of the mineral claim:

• must place substantial gates or grids (or, if the landholder of the land so requires, gates and grids) at all fences intersected by the right of way, or
• if those fences are rabbit proof, marsupial proof or dog proof fences must place rabbit proof, marsupial proof or dog proof gates at all such fences, as the case requires.

Any gate or grid must be of a design and construction that is adequate to prevent stock from straying.

A warden may hold an inquiry into any matter arising under, or in connection with, a right of way.

3.6 Compensation for Rights of way - Mining Regulation 34

The use of a right of way is subject to the holder of the mineral claim who is entitled to the right of way paying the landholder such an amount, by way of compensation, as is agreed in writing by the holder of the mineral claim and the landholder (or, in default of agreement, as is assessed by a warden at the request of the holder of the mineral claim or the landholder.

If the right of way passes over any garden, orchard or land under cultivation, or any land on which is situated any improvement, being a substantial building, dam, reservoir, contour bank, graded bank, levee, water disposal area, soil conservation work or other valuable work or structure being land that was when the right of way was marked out, land of that nature, the holder of the mineral claim who is entitled to the right of way is not to exercise the right of way otherwise than in accordance with the consent of the landholder.

3.7 Right of access to water - Section 212

If land subject to a mineral claim includes the surface of any land, a landholder who is entitled to use the land for stock watering or water drainage purposes is entitled to free and uninterrupted access, for those purposes, to the water in any stream (whether perennial or intermittent) or any lagoon or swamp (whether permanent or temporary) on or adjacent to the land. If any dispute arises between the holder of a mineral claim and any such landholder concerning the right of access, either the holder or the landholder may apply to a Warden’s Court for determination on the matter.

3.8 Use of water, timber and pasturage etc - Section 213

If land subject to a mineral claim includes the surface of the land, the holder of the mineral claim must not:

• use water artificially conserved on that land, or
• fell trees, strip bark or cut timber on that land,

otherwise than in accordance with the consent of any landholder of the surface of the land or, if such a landholder refuses consent or attaches unreasonable conditions to the consent, with the approval of a warden.

The holder of the claim must not:

• depasture horses on the land, or keep on the land any dog that is not under effective control, unless the land is securely fenced, or
• remove rock or earth from the land, except in connection with mining operations, otherwise than with the consent of the landholder of the surface of the land.

Maximum penalty: 100 penalty points.

3.9 Compensation arising under mineral claim - Section 266

On the granting of a mineral claim, a landholder becomes entitled to compensation for any compensable loss suffered, or likely to be suffered, by the landholder as a result of the exercise of the rights conferred by the claim.

“Compensable loss” is defined as loss caused, or likely to be caused, by (Section 262):

(a) damage to the surface of land, to crops, trees, grasses, or other vegetation (including fruit and vegetables) or to buildings, structures or works, being damaged, which has been caused by or which may arise from prospecting;

(b) deprivation of the possession or of the use of the surface of land or any part of the surface; or

(c) severance of land from other land of the landholder; or

(d) surface rights of way and easements; or

(e) destruction or loss of, or injury to, disturbance of or interference with, stock; or

(f) damage consequential on any matter referred to in paragraph (a) - (e)

but does not include loss that is compensable under the Mine Subsidence Compensation Act 1961 .

The holder of a mineral claim must not commence activities on the claim unless:

• the holder has served notice of intention to commence activities on any person entitled to compensation, and
• the amount of compensation payable has been determined by agreement between the parties or assessed by a warden; and
• the compensation has been paid to the person entitled to it or into a Warden’s Court.