The Mining and Petroleum Legislation Amendment Bill 2014 (Bill) has passed both Houses of Parliament. The Bill applies to applications pending at the date of assent and the Bill is currently awaiting assent.

The dramatic changes to be implemented by this Act were considered in our earlier update on the Bill. These include:

New "fit and proper person" test

The introduction of a new "fit and proper person" test to the applicant for authorities dealings (applications to grant, transfer, renew, restrict operations at or cancel an authority).

Importantly, to meet the new fit and proper person test under s 380A(2)(c), the applicant's status of compliance with "relevant legislation" has to be satisfactory to the decision maker.

Further, the new test applies broadly and extends to behaviours of partnerships and arrangements not expressed to be limited to the NSW jurisdiction (see ss 380A(2)(n) and (o)).

Authority for coal mining before planning application

An authority must be in place in respect of the area proposed for mining before a development application or modification request (Planning Applications) may be made or determined.

This requirement extends only to the area of the Planning Application proposed for mining. Areas of the development proposed for mining purposes, or other parts of the development that are not extraction, are not subject to this requirement.

This requirement applies to the making of the Planning Application and the determination of Planning Application. The authority must be in force at both the making of the application and the determination of the application.

Whilst not stipulated, it is presumed that "in force" also extends to authorities that have expired, but in respect of which renewal applications are extant.

These provisions apply retroactively to any development application (or modification request) which was "made (but not determined) before the assent of the..." Bill. The Bill is still awaiting assent.

Accordingly, if the applicant for the Planning Application is different to the holder of the authority under the Mining Act 1992 (Mining Act) then, by virtue of new section 380AA, there needs to have been consent from the holder of the authority at the date the development application was made and when it is determined.

Before it was passed, the Bill was amended to clarify the process for right of appeal to the Land and Environment Court, where the Court's determination of whether the new "fit and proper person" test has been met, is to be implemented by the original decision maker.

What does this mean?

Applicants of pending applications should review and consider their position carefully.

This is particularly so where the applicant for the Planning Application is different to the holder of the authority under the Mining Act, which is not unusual in some mining joint ventures or in neighbour mine transactions where one miner is proposing a dealing with another miner's authority.

In this scenario, it is quite possible that a relevant authority is in force at the relevant times, but a written consent from the holder of the authority, which is required to satisfy s 380AA, is not held by the applicant for the Planning Application. Note that there have been no amendments to the Environmental Planning and Assessment Act 1979 (NSW), which clarify the implications for the Planning Application in this scenario.

In our earlier update, we looked at other implications of the new law. These include the need to brief senior management on the new "fit and proper person" test, and to revisit tenement management processes.

The authorities' acquisition process will also require review, from due diligence before acquisition or sale, the impact of the new law on the timing of the acquisition process, through to the warranties and contractual liabilities provisions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.