It is a longstanding general rule
in property law which says that if you are going to give away a right or
interest in your Land, then this should be in writing. Unfortunately though, as
new laws have been created to deal with Land Access for coal seam gas (CSG) and
mining companies, this general and longstanding rule has been whittled away.
What is an Access
Agreement?
Sometimes gas companies need
access across blocks of land to get to the blocks of land under which the coal
seam gas (CSG) might be found. The gas companies are required under the
Petroleum and Gas legislation to enter into "Access Agreements" with
landowners and occupiers of land. The right to come across the land is called
an "Access Right" and it can include the right to construct roads or
tracks across your Land to allow them to get to the area that they want to
explore.
How can I give away access rights without an agreement in writing?
The Petroleum and Gas (Production
and Safety) Act is currently drafted in such a way that Access Agreements or
Access Rights can be given away orally.
How are Access Agreements
different to Conduct and Compensation Agreements?
These Access Agreements are very
different. There isn't even a need to compensate the Landowners or occupiers
under an Access Agreements. Conduct and Compensation Agreements have to be in
writing. If an oral agreement is made in regard to an Access Arrangement for
say a road across the land, then this could be enough to allow a company to
access and build the road on your Land. There is no requirement for
compensation to be paid, but it can be negotiated.
If a Seller of Land enters
into an oral agreement, and I buy the place, am I bound by this?
Yes. The law states that these
agreements are binding on future owners of the Land. The fact that someone's
word could bind up a property well into the future is obviously a very large
problem and the law should be changed.
Surely the new laws about
mining and gas will fix this won't they?
No. The laws in regard to Access
Land are changing; however when the Mining and Energy Resources (Common
Provisions) Bill 2014 was presented to Parliament on 5 June 2014, the problem
with oral Access Agreements had not been addressed. It seems silly that a
company might be allowed to build a large road on someone’s land without giving
someone compensation, and without entering into a written agreement.
Every situation is different and
because some things you even say now could be binding on you, you really should
seek legal advice as soon as you are approached by a mining or gas company for
access to your Land. It is also very important to look at whether or not your
land is inside or outside the exploration area or tenement of a company to know
what type of agreement you should be negotiating.
If you would like further information or have
any questions please give Melanie Oliver, Amy Gudmann or Justin Houlihan a call
on (07) 4927 6333.
