On 27 September 2016 the Mineral and Energy Resources (Common Provisions) Act 2014 (the Common Provisions Act) commenced, which seeks to consolidate similar provisions of different resources legislation into one. One of the focus areas of the Common Provisions Act is in relation to land access.
P&E Law made a number of policy submissions during public consultation periods in relation to these changes, particularly in relation to the definition of ‘restricted land’, the 600m rule and the introduction of Opt-Out Agreements.
In our view, there are 3 key changes that landholders should be aware of under the new legislation.
Firstly, the Common Provisions Act requires CCAs and Opt-Out Agreements to be recorded on the title of land. This will assist future buyers of land to identify whether an agreement applies to the land.
Secondly, the ‘600m rule’ has been removed, meaning that a resource company is no longer required to enter into a CCA with a landholder if undertaking preliminary activities within 600m of a dwelling. Instead, the new restricted land regime applies, which requires a resource company to simply obtain consent from a landholder if they wish to undertake preliminary activities within 200m of a residence. Neither a CCA nor written consent is required from a landholder if preliminary activities are proposed outside of the 200m buffer. A CCA will still be required for advanced activities. Restricted land is also defined to include land within 50m laterally of an artesian well, bore, dam or water storage facility or principal stockyard, amongst other things.
Finally, the Common Provisions Act has resulted in the introduction of Opt-Out Agreements. This is an alternative to a CCA and allows a landholder and resource company to “opt-out” of the CCA process. The template Opt-Out Agreement form must be used and is available online. By entering into an Opt-Out Agreement, landholders will lose many of the statutory protections available under the CCA process, for example:
- There is no need to negotiate how and when a resource authority holder can enter land, how activities must be carried out and what the compensation liability is.
- Unless agreed otherwise, accounting, legal and valuation costs are not automatically recoverable.
- There is no requirement for entry notices once an Opt-Out Agreement is signed.
- There is no legislated dispute resolution process or Land Court review of compensation or a material change of circumstances under the Opt-Out process.
P&E Law strongly opposed the introduction of Opt-Out Agreements and encourage all Landholders to seek independent legal advice before considering signing an Opt-Out Agreement.