LAND ACCESS

 

The NSW Government can grant an Exploration Licence to a company or an individual to explore for minerals or petroleum in an area which may include your land. If the explorer wants to access your land for exploration then the explorer must first negotiate a Land Access Arrangement with you. If you refuse and the explorer chooses to pursue land access, then the law provides for a process of mediation and potentially arbitration. In some cases, an explorer will agree not to access your land against your wishes. This section provides an overview of the land access process.

What is a land access arrangement?
 

An explorer which has been granted an exploration licence by the NSW Government over an area of your land cannot access your land to undertake exploration without having first negotiated a written land access arrangement with you.[i]

 

A land access arrangement is a binding contract between you and the explorer. It determines when, where and how the explorer can access your land.

 

A land access arrangement for mineral exploration is made under the Mining Act 1992 and for petroleum exploration is made under the Petroleum (Onshore) Act 1991.

 

It is important you consider your interests and needs prior to negotiating a land access arrangement with a mineral or petroleum explorer.

 

Land access flowchart
 

The flowchart at the end of this section overviews the land access arrangement process. Each of the components of the process are outlined below.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
Informal negotiations
 

You may be contacted informally by an explorer by phone, in person or by mail, advising of their wish to negotiate a land access arrangement with you.

 

Informal land access negotiations can be conducted without engaging the formal process set out in legislation. This is known as ‘informal negotiations’.

 

Informal negotiations between you and the explorer can result in agreement on the terms of a land access arrangement. If they do not, the legislation provides that the explorer can initiate formal negotiations by serving you a written notice of their intention to obtain land access through the arbitration process.

 

Consider your interests carefully
 

It is prudent to find out as much information as possible about the exploration activities which are planned on your land. This will help you understand the potential impacts of those activities on your farming operations, family’s lifestyle and the environment.

 

If an explorer visits your property unannounced, you are not required to meet with them right away. You can organise a meeting at a time and place that suits you so you can prepare for the meeting. You do not have to meet on your property, you can choose a neutral location.

 

It is strongly recommended that you seek independent legal advice and consider your interests and needs before you negotiate a land access arrangement with an explorer.

 

For more information on getting legal advice see the chapter:

Getting legal advice

 

I was given a land access arrangement to sign, what do I do?
 

An explorer may bring a generic land access arrangement for you to sign when they first visit your property. You are not under any obligation to sign this document or agree to its terms or conditions.

 

You should view the generic land access arrangement as a starting point for negotiations between you and the explorer. These generic arrangements are often basic and may not address unique attributes or circumstances specific to your property and operations.

 

Notice of intention to obtain land access
 

For the land access negotiation process to be formally initiated, under the law the explorer must provide you with notice of their intent to obtain land access and negotiate an access arrangement with you.

 

By law, this notice must include:

 

  • a plan and description of the area of your land over which the access is sought, and

  • a description of the exploration activities that are proposed.

     

If, by the end of 28 days after the explorer has served you with a notice of the explorer’s intention to obtain an access arrangement, and you and the explorer have been unable to agree on such an arrangement, the explorer may, by further notice in writing served on you, request you to agree to the appointment of an arbitrator.

For more information on arbitration see the chapter:

Arbitration and the Land and Environment Court

 

No access – coal seam gas

 

Some coal seam gas explorers have given a public commitment they will respect the wishes of a landholder who does not want coal seam gas exploration on their land. Santos and AGL have formalised the commitment in a signed written agreement (see below).

 

You can discuss with the explorer what actions they will take if you do not want to permit access to your land. It might help if your local community or any affected neighbours form a small group and respond together to express your wish not to have exploration on your land.

 

No access – agreed Principles for Land Access (coal seam gas)

 

On 28 March 2014 an agreement was signed by organisations representing farmers in NSW (including NSW Farmers) and Santos and AGL on agreed principles for land access.

 

A copy of the agreement is included at the end of this section. In the statement the companies confirm they will respect a landholder’s right to say ‘yes’ or ‘no’ to coal seam gas exploration on their land.

 

The agreement related to ‘coal seam gas drilling operations for exploration and production purposes’, and does not include infrastructure, such as pipelines, involved in coal seam gas production.

 

A copy of the agreement is here.

 

Note: On 10 September 2015 the Country Women’s Association of NSW and Dairy Connect further signed up to the Agreed Principles of Land Access.

 

No access – at arbitration

 

At arbitration, the legislation requires the arbitrator to decide whether land access will be granted. It is possible for the arbitrator to deny access, however, the basis on which an arbitrator might deny access is limited and access has generally been granted by arbitrators.

 

In his review of arbitration arrangements in NSW, Bret Walker SC addressed the circumstances under which an arbitrator might deny an explorer access to land.

 

Mr Walker said:

 

‘The most obvious, and probably only, contested issue before an arbitrator whose role is to determine access arrangements, on the question raised by ... what may colloquially be called the no-go areas contemplated by sections 30 and 31 of the Mining Act 1992 (and section 72 of the Petroleum (Onshore) Act 1991). ... in particular under current conditions and in recent times this will involve consideration of the  existence and situation of so-called significant improvements. ... arbitrators determining access arrangements do not have jurisdiction finally to decide that critical question. On the other hand, where conceded significant improvements and topographical and physical constraints combine to impede and practicable access, an arbitrator could and should determine ... that the explorer should not have access to the land in question (given as assumed lack of consent).’

For more information on arbitration see below:

Arbitration and the Land and Environment Court

 

No access – at the Land and Environment Court

 

The final determination of an arbitrator, including the decision whether or not to grant access, is able to be appealed in the Land and Environment Court.

 

For more information on arbitration see the chapter:

Arbitration and the Land and Environment Court

 

Arbitration

 

After an explorer serves you a notice of its intention to negotiate a land access arrangement with you, you have 28 days to commence negotiations with them.

 

If after those 28 days you and the explorer have not reached agreement on a land access arrangement the explorer may serve you with a notice asking you to agree to the appointment of an arbitrator or you and the explorer may agree to appoint an arbitrator.

 

If after a further 28 days you and the explorer cannot agree on the appointment of an arbitrator, then either you or the explorer may apply to the NSW Minister for Resources and Energy to appoint one.

 

In practice, negotiations will often go beyond 28 days. However, these time periods are specified in the legislation and are intended to prevent the negotiation process from stalling. 

For more information on arbitration see the chapter:

Arbitration and the Land and Environment Court

 

The Land and Environment Court
 

If you are unhappy with a land access arrangement which has been prepared by an arbitrator then you can apply to the Land and Environment Court for a review of the arrangement.

Land access under a land access arrangement

 

An explorer can only access your land for exploration once an access arrangement is in place.

 

Financial penalties may be incurred if you obstruct access by an explorer which has an access arrangement in place.[1]

 

You can deny access under a land access arrangement only if the explorer breaches the land access arrangement, and then only until the breach is rectified.[2]

 

Getting legal advice
 

Do I need legal advice?

A land access arrangement is a legally binding contract between you and the explorer, so it is important that it protects your interests.

 

There are a number of conditions mentioned in the legislation that may be included in a land access arrangement. An independent legal practitioner can assist you negotiate these conditions (and more) of your arrangement and take into account the specific needs of your business operations and family.

 

For more information on obtaining legal advice see the chapter:

Getting legal advice

 

How do I pay for legal advice?

Under the legislation, the explorer must pay your reasonable costs in obtaining initial legal advice about the Land Access Arrangement.[3],[4]

 

In July 2013 and then again in response to the recommendations of the Walker Review in 2014, the NSW Government announced its intention to amend the law to require an explorer to pay for the landholder’s reasonable legal fees for the entire negotiation period. While the amendments have been passed, implementation may take considerable time and the Act has not yet commenced.

For more information on the Walker Review of the arbitration framework in NSW see:

Walker Review of the Arbitration Framework

 

Restrictions on exploration

 

The legislation includes some restrictions on exploration you should be aware of when negotiating a land access arrangement with an explorer.

 

Those restrictions are detailed below, however, you should note they can be overridden by a land access arrangement and, if overridden, will no longer apply to your land. 

 

You should ensure a land access arrangement does not override these protections without careful consideration.

 

Coal and mineral exploration – without your consent, mineral exploration is prohibited from occurring on your land:

 

  • on or within 200 metres of a dwelling house that is your principal place of residence[6]

  • on or within 50 metres of any garden[7]

  • on any ‘significant improvement’[8] which means any substantial building, dam, reservoir, contour bank, graded bank, levee, water disposal area, soil conservation work, or other valuable work or structure[9].

 

If there is a dispute between you and the explorer as to what constitutes ‘significant improvement’, the issue will be decided by the Land and Environment Court.[10]

 

The courts have interpreted ‘significant improvements’ broadly and have found fences, stock yards and dams could qualify. It has also been found that cleared land with native grasses is not a significant improvement.

 

Petroleum exploration – without your consent, petroleum exploration is prohibited from occurring on your land:

 

  • on or within 200 metres of a dwelling house that is your principal place of residence

  • on or within 50 metres of any garden, vineyard or orchard[11]

  • on 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)[12].

 

If there is a dispute between you and the explorer as to what constitutes an ‘improvement’, the issue will be decided by the Land and Environment Court.

 

Coal seam gas exclusion zones – coal seam gas development is now prohibited within exclusion zones and buffer zones which form a 2km radius around exclusion zones.[13]     

 

Coal seam gas exclusion zones are areas described as:[14]

 

  • land within a residential zone (as identified in a Local Environmental Plan),

  • future residential growth areas,

  • additional rural village land, and

  • critical industry clusters.

 

Buffer zones are any land which is not in an exclusion zone but is within 2km of that zone.

 

Local Councils have the ability to opt out of exclusion zones if they wish to facilitate coal seam gas exploration and production in their local government area within residential zones and future residential growth area land.[15]

 

For coal seam gas production on ‘cultivated land’ – a coal seam gas producer which has a production lease from the NSW Government cannot extract coal seam gas or erect any infrastructure on your land if it is cultivated land except with your agreement.[16]

 

If you and the coal seam gas company or individual do not agree on what defines ‘cultivated land’ the Minister for Resources and Energy will decide.[17]

 

What the land access arrangement could cover

 

A land access arrangement may define the following matters:[18]

 

  1. the times of the day the explorer can access your land

  2. where on the land exploration can occur and access  to these areas

  3. the kinds of exploration activities that can take place

  4. conditions that must be considered by the explorer (such as closing gates and noise levels) 

  5. compensation to be paid to you as a consequence of any ‘compensable loss’ suffered by you as a result of  the exploration activity

  6. how disputes between you and the explorer would be resolved

  7. how the arrangement may be varied in the future, and

  8. how the explorer is to be notified if ownership of the land changes.

 

There are other protections that you should consider negotiating into a land access arrangement, some of which will be particular to your operations.

 

You must be paid compensation for any ‘compensable loss’ suffered by you as a result of the exploration activity on your property. Compensable loss can include:[19]

 

  1. damage to the surface of land, crops, trees, grasses, other vegetation (including fruit and vegetables), buildings, structures or works,

  2. use of the surface of land,

  3. severance of land from the landholder,

  4. surface rights of way and easements,

  5. destruction, loss of or injury to stock,

  6. damage, which is a consequence of any of the above.

 

For more information on what should be covered in a land access arrangement see the chapter:

Land Access Checklist

 

A template land access arrangement for mineral exploration is available. This can provide some guidance as to what should be included in a land access arrangement. This should be used as a guide only and careful consideration must be given to your own circumstances. It is recommended that you obtain independent legal advice before entering into a land access arrangement.

For a copy of the NSW Government’s template land access arrangement for minerals exploration visit:

Template Land Access Arrangement for Minerals Exploration

               

Tips for negotiations

 

Keep all documentation

You should keep diary notes of every contact you have with the explorer, including the nature of the contact and the persons involved. You may also wish to send a letter or email to the explorer confirming in writing the key points of the contact.

 

You should also keep copies of all correspondence with the explorer.

 

Communication strategies

An explorer may often prefer to deal with landholders on a ‘one-on-one’ basis.

 

However, an explorer may have an advantage in negotiations because of their experience and the resources at their disposal.


To balance that advantage, you could:

 

  • form small groups with other landholders affected by the exploration activity proposed and request the explorer meet with the group (for NSW Farmers’ Members, local branches and/or District Councils may be available to coordinate)

  • engage a lawyer or experienced negotiator to assist you or your landholder group, or

  • arrange all contact with the explorer through your solicitor.

 

Be neighbour-friendly

It is important to consider your neighbours when negotiating a land access arrangement. Exploration activities on your land can impact on your neighbours’ use of their land. You should be mindful of this when negotiating a land access arrangement.

 

It is important to be able to talk with your neighbours about the exploration activity happening in your area. Some explorers try to include confidentiality arrangements in the land access arrangement to prevent landholders from discussing the compensation arrangements with their neighbours. It is recommended that you consider your neighbours before you agree to these.

 

Some pointers for neighbour-friendly negotiations: 

 

  • share your experiences and keep neighbours informed if you’re approached by an explorer or an individual. You would want the same in return.

  • do not sign a confidentiality arrangement as part of a land access arrangement without first considering your neighbours.

 

Under the Mining Act 1992 your neighbour may be entitled to compensation for any loss they suffer as a consequence of exploration activity on your land.[20]

 

There is also a possibility that exploration on your land may constitute a nuisance to your neighbour, or that exploration on your neighbour’s property may constitute a nuisance to you.

 

A nuisance occurs when someone interferes with another person’s ordinary and reasonable enjoyment of their land. This may, for example, be because of, for example, noise, dust, lighting or truck movements from exploration activities.

 

Nuisance is a legal claim which aims to prevent or modify the activity that is regarded as a nuisance. However, the nuisance activity must be substantial and unreasonable. This will depend on your particular circumstances and the nature of the exploration activity.

 

Nuisance claims for exploration activities are not common. However, if you feel a nuisance is occurring you should speak to your lawyer about your circumstances. 

 

Land access other than under a land access arrangement

 

Environmental assessment permit

An explorer may obtain a permit from the NSW Government to enter your land to undertake environmental assessments without the need to enter into a land access arrangement with you.

 

If an explorer obtains such a permit they must give you ‘reasonable notice’ of their intention to enter your land; they must only enter your land at a ‘reasonable time’; and, they must show you a copy of the permit if you ask for it.

 

You can seek compensation if you suffer any loss as a result of the explorer entering your land to undertake environmental assessment.184

 

Easements and rights of way

An explorer may obtain a right of way between their operations and a public road.

 

This access should, where possible, follow existing roads or tracks, and the explorer will have to fence the access.

 

A coal seam gas explorer can seek an easement or a right of way over your land if it is necessary for them to construct access roads, for example.[xxiv]

 

Walker review of the arbitration framework

 

On 15 April 2014, the NSW Government commissioned Bret Walker SC to undertake an independent review of the land access arbitration processes under both the Mining Act 1992 and the Petroleum (Onshore) Act 1991.

 

Mr Walker’s report was completed in July 2014 and released by the NSW Government in August that year.

 

The report contained 32 recommendations relating to the qualifications, continuing education, appointment, role and scope of arbitrators; the arbitration process; and the rights of landholders engaged in arbitration and their associated costs.

 

In its response to the report, the NSW Government endorsed the recommendations made by Mr Walker and committed to a timeline for their implementation.

 

To view or download the full Walker Report of the land access arbitration framework in NSW visit:

Examination of the Land Access Arbitration Framework

 

To view or download the NSW Government’s response to the Walker Report visit:

Government Response to the Walker Review

 

Walker Review – key recommendations

 

Mediation process separate to arbitration

Mr Walker recommended the legislation be amended to provide a separate mediation process, and that a person who acts as a mediator may not be an arbitrator except with the agreement of the explorer and landholder.

Site inspections by mediator or arbitrator

Mr Walker recommended the legislation be amended to provide a site inspection of view by a mediator or arbitrator.

 

Negotiations in good faith

Mr Walker recommended the legislation be amended to provide that parties negotiating and arbitrating a land access arrangement must do so in good faith.[iii]

 

Legal representation at arbitration

Mr Walker recommended the legislation be amended to provide the parties with the right to legal representation at an arbitration hearing.[iv]

 

Arbitrated land access arrangements to be published

Mr Walker recommended the legislation ‘be amended to provide that every determination by an arbitrator ... be published on the (NSW Government) Division of Resources and Energy website.’[v]

 

Approved list of experts for baseline reporting

Mr Walker recommended procedural guidance be prepared dealing with the preparation of conclusive baseline reports prior to arbitration and that the NSW Government prepare an approved list of experts to undertake baseline testing.

 

Arrangements for determining ‘significant improvements’

Mr Walker made a number of recommendations relating to ‘significant improvements’.

 

Under the legislation as currently written, an explorer is not permitted to explore on any ‘improvement’ (for petroleum exploration) or on any ‘significant improvement’ (for mineral exploration) without the permission of the landholder.

 

Mr Walker’s recommendations included:

 

  • that the legislation be amended so that both the Mining Act 1992 and the Petroleum (Onshore) Act 1991 refer to ‘significant improvement’

  • that the Land and Environment Court continue to determine any dispute over what is a significant improvement

  • that the Land and Environment Court develop processes to ensure decisions on significant improvement questions are expedited to ensure arbitration processes are not unnecessarily delayed

  • that arbitration processes be placed on hold while questions on significant improvement are considered by the Land and Environment Court

  • that an arbitrator may make a non-binding decision on significant improvement subject to review by the Land and Environment Court if not agreed by the parties;

  • that any disputes over significant improvement are identified and considered early in the arbitration process;

  • that the legislation be amended to enable regulations to be made regarding what is and what is not a significant improvement.

  • that the legislation be amended to provide that a landholder cannot unreasonably withhold consent for exploration on any ‘significant improvement’.

     

Costs of Landholder

Mr Walker recommended the legislation be amended to provide that a landholder is entitled as part of the negotiation and arbitration of an access arrangement to have ... costs paid by the explorer for their time spent in negotiations and arbitration (up to a cap), legal costs (up to a cap), and the costs of any experts (up to a cap).

 

Mr Walker also recommended that explorers always be required to pay the costs of the landholder (whatever the outcome of the review) if a matter is heard in the Land and Environment Court, unless the Land and Environment Court determines that the landholder was unreasonable, and then only to the extent that such conduct increased the costs.

 

Compensation

Mr Walker recommended the Petroleum (Onshore) Act 1991 be amended to include similar terms as those in the Mining Regulation 2010 so an arbitrator must take certain factors (including the nature, quality, area and particular characteristics of the land concerned, the proximity of the land to any building, the purpose for which the land is currently used, and the use of the land as approved under a development consent) into account when determining the level of compensation.

 

Mr Walker also recommended the NSW Government develop guidance in relation to the assessment of compensation to assist arbitrators.

 

Implementation of the Walker Review

 

The NSW government committed to implementing the recommendation of the Walker Review. The current status of that implementation is that the government has passed as part of a package of legislation a number of laws that seek to implement the recommendations of the walker report.

 

The provisions which relate to land access and arbitration are yet to be proclaimed and as such they do not yet apply.

 

This page will be updated when these laws come into force.

 

For more information on the legislative changes for mining and petroleum see the chapter:

Mining and Petroleum Legislative Amendments

 

[1]    Mining Act 1992 (NSW) s 378B; Petroleum (Onshore) Act 1991(NSW) s 136(3).

[2]    Mining Act 1992 (NSW) s 141(4).

[3]    Ibid s 141.

[4]    Petroleum (Onshore) Act 1991 (NSW) s 69D(2A).

[5]    NSW Government Media Release ‘Strengthening Landholder Rights’ (17 July 2013).

[6]    Mining Act 1992 (NSW) s 31(1)(a).

[7]    Ibid s 31(1)(b).

[8]    Ibid s 31(1)(c).

[9]    Mining Act 1992 (NSW) (definition of ‘Significant improvement’).

[10]  Petroleum (Onshore) Act 1992 (NSW) ss 72(4), 31(5), 49(5), 62(6A); Mining Act 1992 (NSW) s 188(5).

[11]  Petroleum (Onshore) Act 1991 (NSW) s 72(1)(b).

[12]  Ibid s 72(1)(c).

[13]  State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW)

[14]  Ibid cl 9A(5).

[15]  Ibid cl 9A(3).

[16]  Petroleum (Onshore) Act 1992 (NSW) s 71.

[17]  Ibid s 71(4).

[18]  Petroleum (Onshore) Act 1992 (NSW) s 69D; Mining Act 1991 (NSW) s 141.

[19]  Mining Act 1992 (NSW) s 62; Petroleum Act 1991 (NSW) s 109.

[20]  Mining Act 1992 (NSW) s 263.

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