LAND ACCESS CHECKLIST

 

The NSW Government may grant a company or an individual the right to explore for minerals or petroleum on your land.  In order to exercise the right to explore, these explorers must first negotiate a land access arrangement with you.  In some cases an explorer will agree not to access your land against your wishes, or you can protect your interests by negotiating a good land access arrangement. This section is designed as a checklist of the matters you should think about before you negotiate a land access arrangement.

 

The importance of getting legal advice

 

To ensure your interests are protected when negotiating a land access arrangement with an explorer you should get independent legal advice as early as possible.

 

A lawyer with expertise in negotiating land access arrangements will help you negotiate conditions specific to your situation. Some of your costs of obtaining legal advice in relation to a land access arrangement will be paid by the explorer.

 

For more information on getting legal advice see the page:

Legal Advice

 

A land access arrangement must be comprehensive and cover all the access arrangements agreed between you and the explorer. Those arrangements will not become legally binding for the company unless they are included as terms within the land access arrangement. You should make sure that your land access arrangement contains terms that are reasonable and relevant to both you and the explorer. 

 

Conditions prior to entry
 

Before allowing an explorer access to your land, you should ensure that basic legal obligations have been met.

 

You should ensure a land access arrangement requires:

  • insurance, and

  • securities

 

Once a Land Access Arrangement is in place, an explorer will be entitled to access your land to undertake certain low impact activities, in accordance with the terms of the Arrangement and conditions of their Exploration Licence.

 

Before the explorer undertakes additional activities that require a further approval from the Division of Resource & Energy, you should ensure that the Land Access Arrangement requires baseline assessments to be performed.

Baseline assessments

Baseline assessments are studies which are done before or perhaps as part of exploration activity. These studies establish the conditions of your property and the environment prior to exploration. This is important so any impacts of the exploration activity on your land can be measured over time. This makes it easier to estimate any damage or compensation required.

 

The extent or type of baseline assessments will depend on the extent and type of exploration activity proposed. Exploration activities can escalate or change over the period of access. You should ask the explorer what different activities are anticipated.   

 

Some matters that could be assessed are the:

 

  • value of your property

  • extent and condition of crops, orchards, gardens and vegetation 

  • condition of buildings, structures or works such as fences or dams

  • quality, quantity and location of surface water and groundwater 

  • location and condition of natural features such as contours, soils, pastures, native vegetation and threatened species, and

  • condition of stock.

 

It is important that you have these assessed independently and you should consider negotiating for the explorer to fund the engagement of independent:

 

  • valuers

  • soil experts

  • ecologists

  • agronomists

  • hydrogeologists and water experts, and/or

  • ecologists.

 
Insurances and securities
 

Before an explorer can explore on your land, it must have public liability insurance. You should also be indemnified by the explorer for any and all loss or damage resulting from the explorer’s activity.

 

Additionally, the explorer should guarantee that it will pay any compensation required to rectify any damage to your property or to fund rehabilitation works.

 

Exploration activities and access to your land
 

An explorer which seeks access to your land must serve you with a written notice of its intention.

 

Along with the notice you should have received:

 

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

  • a description of the prospecting methods that will be used.

 

It is a legal requirement that the explorer provide you these documents. If you have not received them you should contact the explorer and request copies.

 

You should also find out:

 

  • more detailed information on the exploration planned

  • what chemicals will be used

  • what equipment will be used

  • whether the explorer wants to clear vegetation

  • how much water will be used, and

  • if there are temporary work-camps planned.


This information will help you understand the extent of operations the company intends on your property and will put you in a better place to negotiate protections for your interests, land and water.

 

As exploration activity may escalate or change over time, you may need to vary the land access arrangement to accommodate new activities or protection measures.

 

Area of access

You will need to identify areas which you want to negotiate as off-limits to exploration activities in order to protect your use of your property.

 

To do this, you could create your own property plan and mark the following on it:

 

  • any dwelling houses

  • farm buildings, houses, sheds

  • farm infrastructure (roads, paths, tracks, fences, dams, irrigation infrastructure, powerlines)

  • natural features such as water sources, topography, native vegetation  

  • areas of high production

  • any areas where operation of farm equipment or machinery is necessary

  • soil types

  • any areas used by you and your family for recreation and enjoyment

  • views from your house, and

  • planned future development areas.

 

Use the map to decide which areas you are willing to allow access to and which areas you would like to be off-limits to the explorer.

 

There are legal restrictions on, for example, how close an explorer can come to your house while exploring. However, these can be waived in the Land Access Arrangement if you agree.

 

For more information on restrictions on exploration see:

Restrictions on exploration

 

When your property will be accessed

You will want to consider the impacts the exploration activity will have on your day-to-day business operations. You will also want to consider the impacts the exploration activity will have on your personal enjoyment of your property. Taking into account these factors you will need to decide what times you want off-limits to exploration activities.

 

From a personal point of view, take into account the potential loss of privacy and potential noise pollution from exploration operations.

 

From a business point of view, you will want to work out times that exploration activity may need to be restricted or adapted to your work schedule.   

 

Time restrictions may include:

 

  • daily times and days of entry (e.g. 9am to 5pm, Monday to Friday)

  • total period of access (e.g. start date to finish date)

  • any days or times the explorer may not enter your property (e.g. public holidays, special family events)

  • times of the year when exploration activity is restricted (e.g. lambing, harvest)

  • safety of your children around school bus pick up and drop off times where road access is shared.

 

Access routes

You will want to consider how the explorer will access the areas on your property you agree the company can explore.

 

Some matters you may want to think about include:

 

  • what access routes are appropriate to exploration sites

  • whether the proposed access routes create more traffic near your house or will distress livestock

  • whether the proposed access routes pose a safety risk for your children (especially if it’s a school bus route)

  • whether increased vehicle movements will create more dust, noise or impact pastures 

  • whether the proposed access route will cut across paths used by stock for water, or irrigation infrastructure  

  • whether access routes will interrupt utility supply lines (such as for power, water or communication)

  • what entry points to your property the explorer can use

  • whether there should be alternate roads for wet weather access

  • requirements for the explorer to contact you for permission prior to using certain access routes in wet weather

  • whether the explorer is able to build new roads or upgrade old ones to accommodate the number of vehicles needed.  

 

In relation to access routes, you might also want to go into more detail in the land access arrangement about:

 

  • the maximum number of vehicles to be used

  • the maximum number of vehicle movements a day

  • asking the explorer to leave all gates as it finds them

  • setting speed limits for vehicles

  • how the explorer will keep roads and tracks in repair

  • how the explorer will monitor worker’s access, equipment, vehicles, chemicals and materials brought onto the property

  • the number of workers that will be accessing your property

  • how explorer personnel and vehicles are identified

  • whether smoking or drinking will be permitted on site

  • whether the explorer will bring dogs or firearms onto the property.

 

Protecting your land, farming operations and the environment

To protect your property, farming operations and the environment on your land, there are certain conditions you should think about including in a land access arrangement that will minimise the impact of exploration activities.    

 

Protecting your property and farming operations 

Exploration activities on your land may cause disruption to your farming schedule or damage to your property. You should think about what terms you should negotiate into the land access arrangement to minimise these impacts.  

 

You should consider:

 

  • impacts on the surface of the land and soils in the exploration area

  • impacts on access roads and tracks

  • impacts on crops, trees, pastures, grasses and native vegetation

  • impacts on buildings and farm structures 

  • impacts on stock

  • biosecurity protections 

  • having an emergency management plan in place for events such as bushfires, floods and exploration activity incidents.

 

It is recommended that you require the explorer to:

 

  • leave all gates as it finds them

  • fence drill holes or rigs to an agreed standard

  • promptly repair fences, roads or tracks

  • report incidents with stock to you immediately

  • clean vehicles, equipment and boots of all dirt and vegetable matter before accessing your property to prevent spread of diseases and weeds

  • give you a copy of its hazard reduction plan and any plans to prevent the spread of weeds and diseases   

  • keep a log to record all chemicals and materials brought onto your property

  • drive slowly and carefully around stock and in pastures on access routes

  • give farm machinery right of way

  • minimise attraction of pests by not leaving food scraps and wastes on site 

  • develop an emergency management plan with you.

 

Protecting the environment

It would be a good start to negotiations to ask the explorer for a copy of its current exploration licence and the environmental assessment it produced to obtain the licence.

 

The exploration licence will contain conditions relating to environment protection which you should know about. This will give you more information on the potential environmental impacts of exploration activity and on the environmental protection measures included in the licence.     

 

It is recommended that you require the explorer to:

 

  • prevent contamination of the environment including water, soils, vegetation and air 

  • ask permission before using or taking water from any source on your land

  • ask permission before felling trees, strip barking or cutting timber

  • agree to limits on dust pollution

  • immediately report spills and contamination to you

  • complete regular testing of water, soil and air quality and to make these results available to you

  • place wastes in suitable containers and remove them from your property as soon as possible

  • inform you of what chemicals will be used on your property and how they will be stored

  • manage garbage, hydrocarbons, waste and refuse in accordance with the terms of its exploration licence

  • agree not to use carcinogenic chemicals on your property.

 

In relation to drilling activity, you should ask the explorer to:

 

  • drill in a manner to prevent erosion and collapse of the surrounding surface area

  • manage drilling sumps or pits that are left open or unattended to limit access by livestock and native fauna

  • minimise risks associated with gases or liquids within the earth including contamination and cross-contamination of aquifers

  • conduct venting or flaring of gases in a way that minimises pollution and fire hazard

  • construct groundwater monitoring bores which comply with minimum construction requirements

  • case and fit drill holes in an accessible condition with a removable cap to prevent collapse and ensure safety of people and animals

  • seal each drill hole to applicable standards before they are abandoned.        

 

Communications and records

It is useful to establish a point of contact for the explorer and agree to a method of communication (by mail, phone and/or email, or via your legal representative).   

 

Tips for communication with the explorer:

 

  • establish a point of contact (likely to be the project manager)

  • agree on the main method of communication

  • ask for regular updates for progress on work

  • ask for the explorer to report any damage or incidents to you immediately.

 

Ask the explorer to keep records of:

 

  • all equipment, vehicles, chemicals and material brought onto your property

  • each person accessing the property (daily).

 

You should also ask the explorer to allow you to view these records whenever you request.

 

Costs and compensation
 

Costs

The explorer must pay for your reasonable legal costs of obtaining initial advice about the making of the land access arrangement.You should negotiate for the explorer to cover your legal costs throughout the negotiation period and, if you are taken to arbitration, for that period as well.  

 

You should also negotiate for the explorer to cover the costs of any independent expert advice which you seek, such as for baseline assessments.

 

Compensation

A land access arrangement between you and an explorer should provide for you to be paid compensation for the exploration occurring on your land. You are also entitled to compensation for any loss which you might suffer as a result of exploration activity.

 

There are different ways to deal with compensation. For loss, damage or inconvenience you can anticipate, you can agree on an amount to be paid in the event a certain event occurs. An example of this is agreeing on an amount for every drill hole. If damage or loss occurs which you do not expect, then you will still be able to ask the explorer for additional compensation.    

 

Sometimes an explorer will offer to undertake work, such as building or replacing roads and fences, instead of or as well as monetary compensation.

 

Types of damage or loss resulting from exploration activities that will be compensated include:

 

  • damage to the surface of the land, crops, trees, grasses or other vegetation (including fruit and vegetables)

  • damage to buildings, structures or works

  • deprivation of the possession or use of the surface of any part of the land 

  • severance of land from another landholder 

  • surface rights-of-way and easements

  • destruction, loss of, injury to or disturbance of stock

  • any damage as a consequence of any of the above.

 

You should also consider negotiating compensation for the time you spend receiving professional advice and negotiating the land access arrangement.

 

The type and amount of compensation paid will vary on a case-by-case basis depending on your situation and the nature of the exploration activity.

Recently, the government commissioned IPART to deliver a report on compensation for landholders for gas development and production. The final report of IPART included a calculation spreadsheet that may assist landholders in determining appropriate compensation levels.

 

In addition, and of importance to landholders, IPART recommended as part of its compensation model to include ‘incentive’ payments for farmers. These are payments to farmers that may be negotiated, which can amount to a payment in excess of their losses and may become an income stream for them.

 

Rehabilitation

Once you have understood the extent of and potential impacts of the activities proposed by the explorer on your land, you will need to think about what will need to be done to rehabilitate the land once the exploration activity has finished.

 

Rehabilitation requirements are set out in the conditions to the explorers licence, so you should ask the explorer for a copy of its licence, including the conditions.

 

It is recommended you negotiate for the explorer to:

 

  • carry out any rehabilitation in accordance with the exploration licence conditions

  • commence rehabilitation as soon as possible after it has completed exploring on your land

  • remove all equipment, buildings or other infrastructure once exploration is complete

  • leave the exploration area in a tidy, clean and stable state

  • repair all damage to the exploration area as soon as possible

  • repair any damage to access routes, roads and tracks

  • ensure excavated base material, subsoil and topsoil are replaced in the order they were removed

  • reshape all surface disturbance to be consistent with pre-existing landforms

  • prepare the land surface for re-vegetation

  • rehabilitate any crops or pastures by reseeding

  • rehabilitate with native species where native vegetation has been cleared. 

 

To ensure rehabilitation work is undertaken in a reasonable timeframe you should also seek to include a term in the land access arrangement which would allow you to undertake rehabilitation works at the explorer’s expense if it has not started rehabilitation works within a reasonable time of you asking for the work to be done.

 

Dispute resolution, variation and breach of the land access arrangement  

 

Dispute resolution

With your legal advisor you should decide on the appropriate method for settling disputes arising out of the Land Access Arrangement or exploration activity.

 

Variation of the terms of a land access arrangement

It is important to agree on a procedure for varying the land access arrangement. As exploration activities may change from what was contemplated during negotiation, it is important that land access arrangements are flexible in relation to negotiating changes in terms of the arrangement. 

 

You will need to talk to your legal advisor about ways to trigger subsequent negotiations and a method for varying the arrangement.

 

Breach of the access arrangement

You will need to think about what options you have if the explorer breaches the land access arrangement it has with you, and you should discuss those options with your lawyer.

 

If the explorer breaches the land access arrangement, you can exclude the explorer entering your land until it remedies the breach.

 

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