Mining Act 1992 No 29
Current version for 19 December 2014 to date (accessed 28 December 2014 at 23:19)
Part 4

Part 4 Assessment leases

Division 1 Applications

33   Application for assessment lease

(1)  Any person may apply for an assessment lease.
(2)  To avoid doubt, the owner of privately owned minerals may apply for an assessment (mineral owner) lease or any other assessment lease with respect to those minerals.
Note. The owner of privately owned minerals may choose to apply for an ordinary assessment lease with respect to those minerals, rather than an assessment (mineral owner) lease. In relation to assessment (mineral owner) leases see section 42 (4).
(3)  An application that relates to land in a mineral allocation area may not be made in relation to an allocated mineral except:
(a)  by the holder of an exploration licence or mining lease over that land in respect of that mineral or group of minerals, or
(b)  with the Minister’s consent.
(4)  An application for an assessment lease must:
(a)  specify the mineral or minerals in respect of which the application is made, and
(b)  be lodged with the Director-General, and
(c)  be accompanied by the required information and the application fee prescribed by the regulations, and
(d)  if the application is for an assessment (mineral owner) lease with respect to privately owned minerals that have more than one owner, be made by all the owners.
(5)  The required information is as follows:
(a)  a description, prepared in the approved manner, of the proposed assessment area,
(b)  an assessment of the mineral bearing capacity of land in that area and of the extent of any mineral deposits in that land,
(c)  particulars of the financial resources and technical advice available to the applicant,
(d)  particulars of the program of work proposed to be carried out by the applicant in the proposed assessment area,
(e)  particulars of any program of marketing or environmental study proposed to be carried out by the applicant,
(f)  particulars of the estimated amount of money that the applicant proposes to spend on prospecting in the proposed assessment area,
(g)  if the application is for an assessment (mineral owner) lease, evidence that the minerals to which the application relates are owned by the applicant,
(h)  any other information that is prescribed by the regulations.
(6)  If there is more than one applicant for the lease, a reference in subsection (5) to the applicant is a reference to each applicant.

33A   Notice of application for assessment lease

(1)  Within 14 days (or such other period as may be prescribed by the regulations) after lodging an application for an assessment lease, the applicant must cause notice of the application to be published in a newspaper circulating generally in the State and in at least one newspaper circulating in the locality concerned.
(2)  The notice must:
(a)  state that an application for an assessment lease has been lodged, and
(b)  contain a plan of the proposed assessment area, and
(c)  comply with any other requirements that are prescribed by the regulations for the purposes of this subsection.

33B   Limit on subsequent applications

If a person:
(a)  applies for the grant or renewal of a mineral owner authority in relation to particular land and that application is refused, or
(b)  was the holder of a mineral owner authority in relation to particular land when that authority was cancelled,
the person may not, within 2 years after that refusal or cancellation, apply for an assessment (mineral owner) lease in relation to that land except with the Minister’s consent.

34   Decision-maker may require further information

The decision-maker may require the applicant to furnish further information in connection with the application, including (if the applicant is a corporation) information as to the extent to which the controlling power in the corporation’s affairs is held by:
(a)  a foreign company within the meaning of the Corporations Act 2001 of the Commonwealth, or
(b)  a company registered under that Act that is taken for the purposes of that Act to be registered in a State or Territory other than New South Wales, or
(c)  an individual who is a resident of a foreign country.

35   Exclusion of land from assessment lease application

(1)  The decision-maker may, by order in writing, direct that any part of the land to which an application for an assessment lease relates be excluded from the application.
(2)  A direction takes effect on the date on which written notice of the direction is served on the applicant.
(3)  This section does not apply to an application for an assessment (mineral owner) lease.

Division 2 Restrictions on the grant of assessment leases

36   Land in reserve or opal prospecting area

An assessment lease may not be granted over any land within:
(a)  an opal prospecting area, or
(b)  a reserve in respect of which an order prohibiting the granting of assessment leases is in force under section 367.

37   Land subject to authority

(1)  An assessment lease may not be granted over any land:
(a)  the subject of an exploration licence that includes any mineral or minerals in respect of which the assessment lease is sought, or
(b)  the subject of an assessment lease, mining lease or mineral claim, or
(c)  the subject of an application for any of the following that was lodged before the application for the assessment lease:
(i)  an exploration licence that includes a group of minerals in respect of which the assessment lease is sought,
(ii)  an assessment lease,
(iii)  a mining lease,
(iv)  a mineral claim,
otherwise than to or with the written consent of the holder of, or the applicant for, that licence, lease or claim.
(2)  A written consent given under this section is irrevocable.
(3)  If, as a result of such a consent, an assessment lease is granted over any such land, that land:
(a)  ceases to be subject to the exploration licence, assessment lease, mining lease or mineral claim concerned, or
(b)  is excluded from the application for the exploration licence, assessment lease, mining lease or mineral claim concerned,
as the case requires, unless the decision-maker makes a determination under subsection (4).
(4)  The decision-maker may determine that subsection (3) does not apply with respect to the land or to a part of the land if the decision-maker is satisfied that having the land or that part subject to both the lease and the other authorisation concerned will not make the exercise of rights under the lease or the other authorisation impracticable.

38   Land subject to exploration licence

(1)  If an application for an assessment lease is made in respect of land that is wholly or partly subject to one or more exploration licences (other than exploration licences that include any mineral or minerals in respect of which the assessment lease is sought), the decision-maker must cause notice of the application to be served on the holder of every such exploration licence.
(2)  The holder of an exploration licence served with such a notice may object to the granting of the assessment lease by lodging with the Director-General, on or before the date specified in the notice, a written notice stating the grounds of the objection.
(3)  Any such objection is to be taken into consideration by the decision-maker when determining the application.
(4)  This section does not apply to an application that is made with the written consent of the holder of every exploration licence over the land concerned.
(5)  A written consent given under this section is irrevocable.

39   (Repealed)

40   Colliery holdings

An assessment lease may not be granted over land within a colliery holding unless the Chief Inspector appointed under the Coal Mine Health and Safety Act 2002 is satisfied that prospecting operations may be carried out under the lease without any adverse effect on, and without any risk to the safety of the persons engaged in, the carrying out of coal mining operations in the assessment area.

Division 3 Granting of assessment leases

41   Power of decision-maker in relation to applications

(1)  After considering an application for an assessment lease, the decision-maker:
(a)  may grant to the applicant an assessment lease over all or part of the land over which a lease was sought, or
(b)  may refuse the application.
(2)  Without limiting the generality of subsection (1) or any other provision of this Act, an application may be refused on any one or more of the following grounds:
(a)  that the decision-maker is satisfied that the applicant (or, in the case of an applicant that is a corporation, a director of the corporation) has contravened this Act or the regulations (whether or not the person has been prosecuted or convicted of any offence arising from the contravention) or has been convicted of any other offence relating to mining or minerals,
(b)  that the decision-maker is satisfied that the applicant provided false or misleading information in or in connection with the application.
(3)  The decision-maker may not grant an assessment lease under this section otherwise than in accordance with Part 1 of Schedule 1.
(4)  Part 1 of Schedule 1 does not, however, apply to an application for an assessment lease made by the holder of a mining lease over the same land as that over which the assessment lease is sought.

42   Land and minerals for which assessment lease may be granted

(1)  An assessment lease may be granted over land of any title or tenure.
(2)  An assessment lease may be granted in respect of any mineral or minerals, regardless of whether the mineral or minerals are publicly owned, privately owned or partly publicly and partly privately owned.
(3)  An assessment lease may be granted over the surface of land, over the surface of land and the subsoil below the surface, over the surface of land and the subsoil down to a specified depth below the surface or over the subsoil below or between any specified depth or depths below the surface of land.
(4)  However, an assessment (mineral owner) lease may be granted:
(a)  only in respect of privately owned minerals, and
(b)  only to the owner of those minerals.

43   Shape and dimensions of land over which assessment lease may be granted

The land over which an assessment lease is granted may differ in size or shape from, but may not include land other than, the land over which the lease was sought.

44   Conditions of assessment lease

(1)  An assessment lease is subject to such conditions (if any) as the decision-maker imposes when the lease is granted, or at any other time under a power conferred by this Act.
(2)  Without limiting the generality of subsection (1), the conditions of an assessment lease may include any of the following:
(a)  a condition requiring the holder of the lease to pay royalty to the Crown on any minerals recovered under the lease (but only if it is not an assessment (mineral owner) lease),
(b)  a condition with respect to cores and samples obtained in the course of prospecting.
(3)  Part 14 applies:
(a)  to royalty payable under a condition referred to in subsection (2) (a) in the same way as it applies to royalty payable on a mineral recovered under a mining lease, and
(b)  to the person by whom royalty is payable as if the person were the holder of a mining lease.

45   Term of assessment lease

An assessment lease:
(a)  takes effect on the date on which it is granted or on such later date, or on the occurrence of such later event, as the decision-maker may determine, and
(b)  ceases to have effect on the expiration of:
(i)  2 years after the date on which it took effect, in the case of an assessment (mineral owner) lease, or
(ii)  such period (not exceeding 5 years) as the decision-maker determines, in the case of any other assessment lease.

46   Form of assessment lease

An assessment lease is to be in the approved form and is to include the following particulars:
(a)  a description of the land over which it is granted,
(b)  a list of the mineral or minerals in respect of which it is granted,
(c)  the conditions to which it is subject,
(d)  the period for which it is to have effect.

Division 4 Rights and duties under an assessment lease

47   Rights under assessment lease

(1)  The holder of an assessment lease may, in accordance with the conditions of the lease, prospect on the land specified in the lease for the mineral or minerals so specified.
(2)  If an application for a mining lease or mineral claim made by the holder of an assessment lease is not finally dealt with before the date on which the assessment lease would otherwise cease to have effect, the lease continues to have effect, in relation only to the land to which the application relates, until the application is finally dealt with.
Note. An assessment lease is designed to allow retention of rights over an area in which a significant mineral deposit has been identified, if mining the deposit is not commercially viable in the short term but there is a reasonable prospect that it will be in the longer term. The holder is allowed to continue prospecting operations and to recover minerals in the course of assessing the viability of commercial mining.

47A   (Repealed)

48   Exempted areas

(1)  The holder of an assessment lease may not, except with the consent of the Minister, exercise any of the rights conferred by the lease on land in an exempted area.
(2)  Such consent may be given either unconditionally or subject to conditions.

49   Dwelling-houses, gardens and significant improvements

(1)  The holder of an assessment lease may not exercise any of the rights conferred by the lease over the surface of land:
(a)  on which, or within the prescribed distance of which, is situated a dwelling-house that is the principal place of residence of the person occupying it, or
(b)  on which, or within the prescribed distance of which, is situated any garden, or
(c)  on which is situated any significant improvement other than an improvement constructed or used for mining purposes only,
except with the written consent of the owner of the dwelling-house, garden or improvement (and, in the case of the dwelling-house, the written consent of its occupant).
(2)  The prescribed distance is:
(a)  200 metres (or, if a greater distance is prescribed by the regulations, the greater distance) for the purposes of subsection (1) (a), and
(b)  50 metres (or, if a greater distance is prescribed by the regulations, the greater distance) for the purposes of subsection (1) (b).
(3)  A written consent given under this section is irrevocable.
(4)  This section does not apply with respect to a dwelling-house, garden or significant improvement owned by the holder of the assessment lease or, if the holder is a corporation, by a related corporation.
(5)  If a dispute arises as to whether or not subsection (1) applies in a particular case, any party to the dispute may apply to the Land and Environment Court for a determination of the matter.

50   Assessment areas over which authority is subsequently granted

Land over which an assessment lease is granted and over which some other authority is subsequently granted ceases to be part of the assessment area when the other authority takes effect.
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