Restricted land - When time is of the essence

By James Minchinton.

Key Points:
The evaluation and identification of restricted land is an exercise that must be carried out right up to the point in time when a mining lease application is lodged.

Restricted land is a concept undoubtedly familiar to anyone in the mining industry in Queensland. Without the consent of the owner of restricted land, restricted land cannot be included in the area of a mining lease or mining claim. Getting the consent of the owner of restricted land is therefore an essential part of any mining lease application.

A recent case in the Land and Resources Tribunal serves as a reminder of several key issues associated with restricted land, namely:

• the critical time for the identification of restricted land is the date on which the mining lease (or mining claim) application is lodged; and
• what constitutes restricted land can and does change over time.

What is restricted land?

Restricted land comes in two different categories.

Restricted land (category A) means land within 100 m laterally of a permanent building used –

• mainly as accommodation or for business purposes or
• for community, sporting or recreational purposes or as a place of worship.

Restricted land (category B) means land within 50m laterally of any of the following features –

• a principal stockyard
• a bore or artesian well
• a dam
• another artificial water storage connected to a water supply
• a cemetery or burial place.

The rationale of restricted land appears to be to protect land and improvements that are, or will be, of importance to the landowner when using the land during and after the term of any mining lease (or mining claim).

The case

The decision of the Land and Resources Tribunal in Jarrett v Perry [2007] QLRT 89 concerned restricted land in the context of a mining claim. The principles of restricted land however apply equally to mining leases as well as mining claims.

Jarrett was the applicant for a mining claim. Jarrett obtained consent of three owners of restricted land within the area of the proposed mining claim.

Perry, the owner of land adjacent to the proposed mining claim area, was in the process of constructing a house for private residence at the time the mining claim application was lodged. The house was not completed at the time of lodgement nor was anyone actually in residence at that time. Nonetheless, Perry asserted that the land on which the partially completed house was located was restricted land and that the mining claim could not be granted over the area within 100 metres of the house as Perry had not consented to the mining claim.

The Land and Resources Tribunal found that, at the time that the mining claim application was lodged, the house had reached "lock up" stage and was capable of being used as a residence. On that basis, the land on which the house was situated and the land 100m laterally from the house was restricted land (category A). Accordingly, as Jarrett had not obtained Perry’s consent, that land could not form part of the mining claim.

The lessons

As a result of this case, restricted land should be viewed a risk management issue rather than merely a "tick a box" issue for any mining lease application. The risks associated with restricted land can be managed by:

• being vigilant when identifying restricted land for any mining lease application both prior to lodgement and at the time of lodgement
• being aware that timing can be critical and land can become restricted land at any time if a particular structure is built on the land; and
• investigating construction activities in the vicinity of the proposed mining lease to determine whether, and if so when, land on which construction is occurring may change its categorisation to become restricted land.

If construction activities are being carried out at the time that a mining lease application is lodged, the mining lease applicant may wish to record the details and extent of those construction activities in order to rebut any subsequent assertion that such land became restricted land.

Perhaps the best risk management strategy associated with the potential for land to become restricted land is for a mining lease applicant to obtain the consent of the owner of any land that may potentially be or become restricted land and lodging it with the mining registrar within the required period under the Mineral Resources Act 1989 (Qld). Following this approach will ensure that any restricted land, whether actual or potential, will be included in the area of the mining lease.

For further information, please contact James Minchinton.