Agricultural land objections
There are several ways that the NSW Government balances the need to provide protections for prime agricultural land with a safe and sustainable mining industry.
Along with protections under the NSW Planning system, the Mining Act 1992 provides for consideration of agricultural land in the form of an Agricultural Land Objection. The Department of Primary Industries and Regional Development (DPIRD) manages this process.
Agricultural Land Objections under the Mining Act 1992
A landholder may object to the granting of a:
- mining lease,
- mineral claim, or
- proposal to classify the land as an opal prospecting area
on the grounds that the land or any part of the land is ‘agricultural land’ (as defined under the Mining Act 1992).
As the relevant authority, the department can determine that all or only part of the land in question is ‘agricultural land’.
What is agricultural land?
There are seven criteria that define ‘agricultural land’ under the Mining Act 1992. These are set out in the table below.
| Mining Act 1992 Reference | Criteria description | Potential evidence |
|---|---|---|
| Clause 1(1)(a) of Schedule 2 |
Land that has been sown with not less than two crops of an annual species during the period of 10 years immediately preceding the relevant date.
NB: Land is not to be treated as having been sown with a crop of an annual species unless, in the opinion of the relevant authority, the crop sown was carried through to successful use.
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The objector must provide evidence of all aspects of the cultivation process, including the final use of the crop, the dates each activity occurred, and which areas of land it occurred in. This evidence could be in the form of:
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| Clause 1(1)(b) of Schedule 2 |
Land that has been sown with 1 crop of an annual species during the period of 10 years immediately preceding the relevant date if the relevant authority is satisfied that—
Note: Land is not to be treated as having been sown with a crop of an annual species unless, in the opinion of the relevant authority, the crop sown was carried through to successful use.
|
The objector must provide evidence of all aspects of the cultivation process, including the ultimate use of the crop, the dates this activity occurred and which areas of land it occurred in. The objector must explain why ‘it would not be reasonable to expect more than one such crop to have been sown’. The objector must provide the reason ‘for not having brought the land under cultivation at an earlier date’. This evidence could be in the form of:
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| Clause 1(1)(c)(i) of Schedule 2 |
Land on which—
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The objector must provide evidence for all relevant dates for trees on that land, their purpose, and that those trees are maintained for shade, shelter or windbreak purposes. Maintenance of the trees may be a deliberate clearing of forested land into a specific pattern to provide shade, shelter or windbreak and keeping that pattern. Or the trees may be in a specific pre-existing pattern that has been maintained over time to provide shade, shelter or windbreak. This evidence could be in the form of:
In addition, the objector must provide evidence for all relevant dates to show that the land the trees are claimed to provide shade or shelter or a windbreak to meet one of the other definitions of agricultural land. Refer to the relevant definition entry in this table for more information.
|
| Clause 1(1)(c)(ii) of Schedule 2 |
Land on which—
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The objector must provide evidence for all relevant dates showing edible fruit or nut bearing trees, vines or any other recurring crop have or has been growing. This evidence could be in the form of:
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| Clause 1(1)(d) of Schedule 2 |
Pastures—
|
The objector must provide evidence for all relevant dates showing crops sown, when, in which part of the land, with which seed, or treated with which fertiliser. The objector must provide evidence for all relevant dates showing that, as a result, the land maintained a level of pasture production that is substantially above that which might be expected of natural pastures. This evidence could be in the form of:
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| Clause 1(1)(e) of Schedule 2 | Land that is used, to an extent acceptable to the relevant authority, for the production of grass seed, pasture legume seed, hay or silage. |
The objector must provide evidence for all relevant dates showing all aspects of the cultivation process for the production of grass seed, pasture legume seed, hay or silage. This evidence could be in the form of:
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| Clause 1(1)(f) of Schedule 2 | Land that has a preponderance of improved species of pasture grasses. |
The objector must provide evidence of the greater quantity or quality of improved species of pasture grasses. This evidence could be in the form of:
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The landholder that is objecting (also called the objector) must specify what criteria they are using from the table above to prove the land is agricultural land, and they must supply enough evidence to show this to the Department.
A copy of the objection and all evidence supplied by the landholder will also be provided to the mining lease applicant, the mineral claim applicant or the proposer of the opal prospecting area, who will be allowed to comment on the objection. The landholder will have an opportunity to review and offer further comment.
Who can make an agricultural land objection?
Generally, someone who meets the definition of ‘landholder’ under the Mining Act 1992 may make an agricultural land objection. This includes the registered owner of the land in question, the holder of a lease or licence under the Crown Land Management Act 2016 over the land, and a registered lessee of the land (see the Dictionary of the Mining Act 1992).
How is an agricultural land objection made?
Although a landholder does not require a legal representative to prepare an agricultural land objection, some choose to seek independent legal advice to assist.
An agricultural land objection:
- must be made by a landholder (as defined in the Mining Act 1992) or their legal representative
- must be in writing
- must be addressed to the Secretary, DPIRD
- must be lodged within 28 days of the landholder being served notice of a mining lease application, notice of intention to apply for a mineral claim, or a proposal to classify the land as an opal prospecting area
- must contain the details of the mining lease application, the proposed mineral claim or the proposal to classify the land as an opal prospecting area
- must include the details of the landholder’s land and where their land overlaps with the mining lease application, the proposed mineral claim or the proposed opal prospecting area
- should contain the details of which criteria from the definition of agricultural land in the Mining Act 1992 the land meets (see above, what is considered agricultural land)
- should contain the details of why the land meets the nominated criteria from above as at the relevant date/s.
- should attach enough evidence for the Secretary, DPIRD, to prove the land is agricultural land at all relevant dates applicable.
To lodge an agricultural land objection, the landholder or their legal representative must either:
- email the agricultural land objection (including copies of the evidence relied on) to:
Attention Secretary, DPIRD, Agricultural Land Objection, at titles@regional.nsw.gov.au
OR
- post the agricultural land objection (including copies of the evidence relied on) to:
Attention Secretary, DPIRD, Agricultural Land Objection
NSW Resources, Department of Primary Industries and Regional Development
PO Box 344 Hunter Region Mail Centre NSW 2310.
The department, will contact the landholder or their legal representative upon receipt of the objection and advise the next steps, including confirmation of relevant dates and/or a request for further information or evidence.
What is the relevant date/s?
When making an agricultural land determination, the department, must decide whether the land was agricultural land as at an important date or dates in time, called the relevant date/s.
For mining lease applications:
- the relevant date is when the invitation for tenders for the mining lease concerned was first published, or the application for the mining lease concerned was lodged.
- a second relevant date is required if the tenderer or mining lease applicant previously held an exploration licence (EL) or mineral claim over the land in question. The second relevant date is the date the application for the EL or mineral claim was lodged.
- if a second relevant date is required, then the department will advise the landholder after the objection is lodged.
For mineral claim applications:
- the relevant date is the date the application for the mineral claim concerned was lodged.
For proposals to classify the land as an opal prospecting area:
- the relevant date is the date the notice of the proposal was served.
What does it mean to be 'agricultural land'?
The land is considered agricultural land if the department is satisfied that it meets one or more of the seven criteria outlined in the above table at each relevant date.
For mining lease applications:
- if the land in question is determined to be agricultural land, then the mining lease must not be granted except with the written consent of the landholder.
- however, a mining lease may be granted over any part of agricultural land, including the surface, if the Minister considers that the granting of the lease is necessary to give access to other land to which the lease applies.
- a mining lease may be granted beneath the surface of any agricultural land provided the Minister is satisfied mining operations under the lease are able to be carried out without causing, at any time, unreasonable damage to the agricultural land or unreasonable interference with the use or productive capacity of the agricultural land.
- a determination that land is agricultural land only prevents the grant of the mining lease to which the objection was made. The status does not run with the land and prevent the grant of any new applications for leases.
For mineral claim applications:
- if the land in question is determined to be agricultural land, then the mineral claim cannot be granted over the land except with the written consent of the landholder.
- if a mineral claim has already been granted before a determination of agricultural land was made, the department, may cancel the claim where it is over now determined agricultural land.
- a determination that land is agricultural land only prevents the grant of the mineral claim to which the objection was made. The status does not run with the land and prevent the grant of any new applications for mineral claims.
For proposals to classify the land as an opal prospecting area:
- land determined to be agricultural land may not be constituted as an opal prospecting area or added to an existing opal prospecting area except with the written consent of the landholder.
Need help?
If you have general enquiries concerning the agricultural land objection process, such as the information and evidence a landholder must supply to support an objection, please get in touch with titles@regional.nsw.gov.au, and we will reply within 2 business days.