A mining, gas or water project affects my land

Generally, an explorer operating under a Mining Act 1992 exploration licence or assessment lease needs an access arrangement agreed in writing with each relevant landholder or determined through the statutory mediation and arbitration process. Declining an agreement does not necessarily prevent access: the explorer may pursue that process, subject to the Act's separate consent restrictions. Under those restrictions, the explorer generally cannot exercise its rights over the surface on or within 200 metres of a house that is the occupant's principal place of residence without the written consent of both the owner of the house and its occupant, on or within 50 metres of a garden without the garden owner's written consent, or on a significant improvement without its owner's written consent. That consent cannot be revoked, and the Act's exceptions and definitions must be checked. Separately, section 62 prevents a mining lease being granted over the surface of land within those distances of a principal residence or garden, or on a significant improvement, without the same written consents, subject to its own exceptions. For petroleum and coal seam gas, the Petroleum (Onshore) Act 1991 requires an access arrangement for prospecting titles and also extends that requirement to production leases, other than those granted before the 2015 land access amendments commenced, and section 72 of that Act requires the written consent of both the owner and the occupant before operations are carried out or works erected on the surface within 200 metres of a principal place of residence, with further protection for gardens, vineyards, orchards and significant improvements. The title, the land and the proposed activity determine which rules apply, so the position should be checked before responding to any approach.

Under the Mining Act 1992, the holder of the prospecting title (an exploration licence or assessment lease) must pay the landholder's reasonable costs of participating in negotiating an access arrangement and, if the matter goes to mediation and arbitration, the landholder's reasonable costs of participating in those. Each is subject to any maximum the Minister sets by order, having regard to time spent, legal costs and expert costs. In an arbitration, the arbitrator determines the amount and deducts any increase caused by the landholder acting unreasonably. The Petroleum (Onshore) Act 1991 makes the same provision for petroleum prospecting titles, and applies it to production leases other than those granted before the 2015 land access amendments commenced. What is reasonable and what is recoverable depend on the title and the circumstances, so cost arrangements are often confirmed in writing at an early stage.

Compensation under the Mining Act 1992 and the Petroleum (Onshore) Act 1991 is generally directed at the compensable loss caused by the activities, which can include damage to the surface, crops or improvements, being deprived of the use of part of the land, severance, rights of way and easements, loss of or injury to stock, and consequential losses. The amount is usually negotiated rather than fixed, and depends on factors such as the area affected, how long it is affected and the effect on the use of the land. Each head of loss generally needs to be identified and evidenced, and the exact entitlement depends on the facts and should be assessed for the particular situation.

Impacts on groundwater, including a fall in water levels affecting a private bore, are generally assessed under the Water Management Act 2000 and the NSW Aquifer Interference Policy, and projects taking water usually require a water access licence and approvals. For larger projects assessed as State significant development or infrastructure, the conditions of approval may deal with monitoring and managing impacts on nearby water users. Where a bore or water access is affected, the relevant licences, approval conditions and any monitoring data are generally the starting point, as the available options depend on the project and the facts.