HOW CAN I HAVE MY SAY BEFORE the PRODUCTION STAGE?
 

An exploration company must apply to the NSW Government for a mining or production lease before it can mine or produce petroleum.

The mining or production lease application process can provide another opportunity to have your say.

 

On what applications can I make a submission?
 

You will not have the opportunity to make submissions on applications for a coal seam gas production lease. However you will have an opportunity to comment at the development application stage (see “Development consent stage” below.)

 

You will be able to make a submission about an application for a mining lease (including coal, silver, gold and other minerals).[1]

 

If an open cut mine is proposed on your land you have special rights to object.

 

When can I make a submission on a mining lease applications?
 

For applications for mining leases, you must submit a written objection within the time specified in the notice of the application.

 

Within 14 days of lodging an application for a mining lease, the applicant must publish notice in a state-wide newspaper and at least one local newspaper. This notice will contain the details of how and when you can object to the mining lease.

 

You will need to keep an eye on your local newspaper for this notice of the application.    

           

What should my submission include for mining lease applications?

When writing to object to the grant of a mining lease, think about the potential:

  • Environmental impacts of the mine including impacts on air quality, surface water such as rivers and creeks and groundwater aquifers and potential pollution;      

  • Impacts on local industries and businesses such as farming; and  

  • Social impacts of the mine or coal seam gas project.

 

Although the Minister can take into account many considerations in granting a mining lease, it is recommended that you address issues that the Minister must take into account in your submission.

 

The Minister must consider the need to protect the environment, including: [2]

  • flora;

  • fauna;

  • fish and fisheries;

  • scenic attractions; and

  • areas of Aboriginal, architectural, archaeological, historical or geological interest.

 

Where do I send my submission about a mining lease application?

If you want to object to a grant of a mining lease, then you must make your objection in writing by mail or by email.

 

By mail to:

The Secretary of the NSW Department of Industry. Postal Address: GPO Box K220, Haymarket, NSW 1240

 

Online at: http://www.resources.nsw.gov.au/titles/further-help

 

Landholder’s special right to object to open-cut mines

If your land is subject of an application for a mining lease which would extend to the surface of your land, such as a mining lease for an open-cut coal mine, then you will be personally notified of the mining lease application. You will also have a special right to object and this notice will tell you how you can object.

 

If the mining lease would extend to the surface of your land then you can object on the grounds that your land is agricultural land. If the Minister decides that your land is agricultural land, a mining lease cannot be granted without your consent.

 

The Minister will take the certain criteria into account when deciding whether land is agricultural land. You should specifically address these criteria  in your objection. They are:[3]

 

  • Land that has been sown with not less than 2 crops of an annual species during the 10 years prior to the application for a mining lease being lodged, or

  • Land that has been sown with 1 crop of an annual species during the 10 years prior to the application for the mining lease being lodged, or

  • Land on which shade, shelter or wind-break trees are growing, or at any time during the past 10 years, edible fruit or nut trees, vines or any other perennial crop approved by the Director-General has been growing, or

  • Pastures that are sown with seed of a species and at a rate of application satisfactory to the Director General, and that have, as a result of that sowing or treatment, maintained a level of pasture production that is substantially above that which might be expected of natural pastures, or

  • Land that is used, to an extent acceptable to the Director General, for the production of grass seed, pasture legume seed, hay or silage, or

  • Land that has preponderance of improved species of pasture grasses. 

 

Applications for coal seam gas production leases
 

There is no formal opportunity for the public to make submissions about an application for a coal seam gas production lease.

 

However, you can still write to the Minister for Industry, Resources and Energy to let him know your concerns which he or she may take on board when deciding whether to grant a production lease.

 

The matters you should address are the same as those listed under “What should my submission include for mining lease applications?”  

 

To have your say on an application for a coal seam gas production lease, write to:

The Minister for Industry, Resources and Energy

Level 37 Governor Macquarie Tower
1 Farrer Place
SYDNEY NSW 2000

 

Where a mining or production lease is being renewed

Even though there is no formal public comment process for mining or petroleum lease renewals, you can still write to the Minister for Resources and Energy if you know of such an application.

 

Finding out if an application to renew a lease can be difficult as there is no formal requirement to inform the public of such an application. If you are aware of a renewal application, it is important to make the Minister aware of any reasons why the renewal should not be granted. 

 

The Minister can refuse to renew on any ground but the following are specifically mentioned in law: 

  • Whether the applicant has contravened the Mining Act 1992, regulations or a condition of the previous lease, or

  • If the applicant has provided false or misleading information in connection with the application or in any report required by law.

 

If you are aware of any instances where this has been the case, you should write to the Minister to object to the renewal.

 

Renewal of a mining or production lease
 

The public is not given an opportunity to comment on applications to renew mining or production leases

You can still write to the Minister and address the matters that the Minister must take into account (see above) if you want to object to a renewal

Write to:

The Minister for Industry, Resources and Energy

Level 37 Governor Macquarie Tower
1 Farrer Place
SYDNEY NSW 2000

 
How Can I Have My Say Before a Development Application is Lodged?
 

A development proposal will have to pass the Gateway Process a development application can be lodged if the proposal applies to biophysical strategic agricultural land. If your land has not been mapped as Strategic Agricultural Land, you may apply for the status of your land to be verified as Strategic Agricultural Land.  

 

For more information on Biophysical Agricultural Land see the page:

Strategic Agricultural Land

 

Verification of Strategic Agricultural Land

Verification is only available for state significant mining and coal seam gas developments. This is a scientific assessment of your land that takes into account twelve site verification criteria including access to reliable water, soil types and fertility.

 

Note that if you want to verify the status of your land, you will have to do so at your own cost. The proposed fee for a Biophysical Agricultural Land site verification is $3,900.[4]

 

If your land is found to be biophysical agricultural land then the development proposed over your property will need to go through the Gateway Process for additional consideration to the agricultural land and water impacts of the development.

 

For more information on the Gateway Process  see the page:

The Gateway Process

 

How Can I Have My Say at the Development Application Stage?
 

Development consent is required before a mining lease or production lease is granted. This will give you an extra opportunity to make a submission. 

 

There are three different types of developments which have different assessment and public comment requirements:

  • State Significant Development

  • Designated Development, and

  • Part 5 Developments.

 

Most coal seam gas and mining developments will be state significant development. Most developments that aren’t state significant will be designated development.   

 

Development application stage

There are different types of development that have different assessment requirements

Most coal seam gas and mining development will be ‘state significant development’

For other mining developments, you will generally know they are state significant if they are advertised by the Department of Planning and Environment or are on the ‘Major Project Register’

 

State Significant Development

All developments for coal mining, mineral sands and coal seam gas production are state significant development.[5] Other mining projects with a capital investment of over $30 million will also qualify as state significant development.[6] Generally you will know a project is state significant development if it is listed on the ‘Major Project Register’ or is advertised by the NSW Department of Planning and Environment. 

 

State significant development proposals are either decided by the Minister for Planning and Infrastructure or, if delegated by the Minister, the Planning Assessment Commission.[7]

 

If a development concerning you is state significant development, the development application and the environmental impact statement will go on public exhibition here:

EIS on Public Exhibition 

 

Both the development application and environmental impact statement will go on public exhibition for 30 days. Within that time you may make submissions, addressing both.

 

The decision-maker must take into account a number of issues (including submissions from the public). You should try to address them in your submission. Some of the considerations are:

  • Coastal Zone Management Plans[8]

  • The likely impacts of the development such as environmental, social and economic impacts[9] 

  • The public interest

  • Any conflict of land-uses and whether the development is incompatible with those uses[10]

  • Whether consent should be granted with conditions for environmentally responsible practices (eg. to minimise impacts on water)[11]

  • Whether consent should be granted with conditions to protect local transport infrastructure (eg. public roads)[12], and

  • Whether consent should be granted with conditions to ensure rehabilitation[13].

 

It is important to make a submission if you object to a development because:

  • This will mean that you have ‘objector rights’ to allow you to challenge the development later in Court.[14] 

  • Any objections and concerns are usually passed on to the mining or coal seam gas company to respond within 21 days to respond.    

    

State Significant Development: Planning Assessment Commission public meeting

A Planning Assessment Commission (PAC) will decide on the development application if a state significant development:

  • has received more than 25 submissions

  • does not have the support of local council, or

  • where a political donation must be reported in connection with the application[15].

 

To check if a project has been referred to the Planning Assessment Commission visit:

Planning Assessment Commission

 

This referral will happen after the Department of Planning and Environment has completed its assessment and made this available on the website.[16]

 

The PAC will hold a public meeting or a public hearing. The difference between these is:

  • For a public hearing, there is no right to merits-appeal in the Land and Environment Court of any decision made by the PAC

  • For a public meeting, you can still appeal to the Land and Environment Court if you don’t like the decision of the PAC[17].

 

Notice of the public meeting or hearing will be placed on the Planning Assessment Commission website. The notice will also tell you how to make a submission to the Planning Assessment Commission and how to register to talk at the meeting or hearing.[18] It is recommended that if you have a view on the development application you register to speak at the meeting or hearing.   

 

Your address to the meeting or hearing should address the Planning Assessment Commission’s terms of reference as the Planning Assessment Commission will be constrained to these considerations. A schedule with a time-limits on your address will be circulated before the meeting.

 

It is important you stick to your allocated time, speak clearly, dress formally when attending the Planning Assessment Commission meeting or hearing and be aware that you may be asked questions about your submission after your presentation.[19]     

 

Planning Assessment Commission (PAC) community consultation

If more than 25 submissions are received on a development, then the PAC will decide the development application.

The PAC will hold a public meeting or hearing, you can make a submission to the PAC, and you can register to speak at the public meeting or hearing about your submission.

 

Designated Development
 

Designated development will likely catch most types of mining development that don’t fall into the category of ‘state significant development’. Coal seam gas developments are never designated developments. Designated developments are developments that have a high impact on the environment or are in an environmentally sensitive area. Generally you will know that a development is a designated development if it is advertised by your Local Council. 

 

Any submissions should be made to your Local Council within the exhibition period. The decision-maker must take into account a number of factors when assessing the development, including public submissions. You should try to address them in your submission.

 

The decision-maker must take into account a number of factors when assessing the development, including public submissions. You should try to address them in your submission.

 

Some of these considerations are:

  • Coastal Zone Management Plans[20]

  • The likely impacts of the development such as environmental, social and economic impacts[21] 

  • The public interest

  • Any conflict of land-uses and whether the development is incompatible with those uses[22]

  • Whether consent should be granted with conditions for environmentally responsible practices (eg. to minimise impacts on water)[23]

  • Whether consent should be granted with conditions to protect local transport infrastructure (eg. public roads)[24], and

  • Whether consent should be granted with conditions to ensure rehabilitation[25].

 

Commonwealth Approvals
 

If a development is likely to have a significant impact on a “matter of environmental significance”[26] then it will be called a “controlled action” and need Commonwealth approval.[27]  

 

How will I know if it is a controlled action?

The eight “matters of environmental significance” that trigger a controlled action are:

  • world heritage values of a world heritage area;

  • heritage values of a national heritage place;

  • ecological values of a Ramsar wetland;

  • nationally listed threatened species and ecological communities;

  • listed migratory species;

  • nuclear activities (including uranium mines);

  • Commonwealth marine areas, and

  • the Great Barrier Reef Marine Park.

 

A member of the public cannot refer a matter to the Commonwealth as a controlled action. The Federal Minister for the Environment can call in a development for Commonwealth assessment, or projects can be referred by State Government agencies or the NSW State Government. 

 

Having your say: should the development be a controlled action?

If a development is referred to the Commonwealth, it will be listed on the Government’s website.

 

For a list of “controlled actions” visit:

Controlled Actions

 

You will have 10 days after it is listed to comment on whether the matter should be a “controlled action” and undergo Commonwealth environmental assessment. 

 

Your submission could include:[28]

  • The referral documents (point out whether there is anything overlooked, such as ecological communities, heritage values etc.)

  • Back up your comments using reports or studies 

  • Reference Guidelines on what a ‘significant impact’ is:   Reference Guidelines

  • Suggest a type of environmental assessment

 

Having your say if the development is a controlled action

If a development is a controlled action, the Federal Minister for the Environment will decide what type of environmental assessment will occur. If the Minister decides that an Environmental Impact Statement or environmental report must be prepared, then the Minister will publish this decision.

 

You will be able to comment on:

  • The environmental impact statement or report, and

  • The proposed decision of the Commonwealth Minister for the Environment.

 

The Environmental Impact Statement or report will be publicly exhibited online for 20 business days. During this time you will be able to make a submission about this Environmental Impact Statement. You should raise any issues you feel have not been adequately addressed in your submission.

 

Once the Minister has published their proposed decision on the internet, you will have 10 business days to submit comments on this proposed decision in writing.[29] You should address the reasons why you agree or do not agree with the Minister’s decision in your submission.    

 

 

[1] cl 26, Sch 1, Mining Act 1992

[2] s237 Mining Act 1992, s74 Petroleum (Onshore) Act 1991 

[3] Sch 2, Mining Act 1992

[4] NSW Government, An explanation of the Mining SEPP and EP&A Regulation Draft Amendments, November 2012, p3.

[5] Environmental Defenders Office NSW, Mining Law in New South Wales: A guide for the community. 2012

[6] SEPP (State and Regional Development) 2011, Schedule 1 cl 5

[7] Environmental Defenders Office, Mining Law in New South Wales: A guide for the community, p45

[8] s79C, Environmental Planning and Assessment Act 1979 

[9] s79C, Environmental Planning and Assessment Act 1979

[10] cl 12, SEPP (Mining, Petroleum Production and Extractive Industries) 2007

[11] cl 14,  SEPP (Mining, Petroleum Production and Extractive Industries) 2007

[12] cl 16, SEPP (Mining, Petroleum Production and Extractive Industries) 2007

[13] cl 17, SEPP (Mining, Petroleum Production and Extractive Industries) 2007

[14] EDO

[15] Environmental Defenders Office, Mining Law in New South Wales: A community guide, p45

[16] NSW Government, About the Planning Assessment Commission. Available at: http://www.pac.nsw.gov.au/AboutUs/tabid/55/Default.aspx

[17] Environmental Defenders Office, Mining Law in New South Wales: A community guide, p86

[18] Environmental Defenders Office, Mining Law in New South Wales: A community guide, p86

[19] Environmental Defenders Office, Mining Law in New South Wales: A community guide, p86

[20] s79C, Environmental Planning and Assessment Act 1979 

[21] s79C, Environmental Planning and Assessment Act 1979

[22] cl 12, SEPP (Mining, Petroleum Production and Extractive Industries) 2007

[23] cl 14,  SEPP (Mining, Petroleum Production and Extractive Industries) 2007

[24] cl 16, SEPP (Mining, Petroleum Production and Extractive Industries) 2007

[25] cl 17, SEPP (Mining, Petroleum Production and Extractive Industries) 2007

[26] See s12 to s25, Environmental Protection and Biodiversity Conservation Act 1999 (Cth)  

[27] Environmental Defenders Office, Mining Law in New South Wales: A community guide, p74

[28] Environmental Defenders Office, Mining Law in New South Wales: A community guide, p76

[29] Environmental Defenders Office, Mining Law in New South Wales: A community guide, p78

 

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