'Conduct and Compensation Agreements: Alternative Arrangements'

Tuesday October 7, 2014

The below article is by Laura Hogarth, Lawyer, Creevey Russell Lawyers.

When negotiating a conduct and compensation agreement ('CCA') with a mining or petroleum (particularly CSG) company, some landholders may be asked to sign an ‘alternative arrangement’ ('AA') with respect to noise.

An AA may be a separate document or simply a clause in the CCA. The compensation payable under the AA may be in addition to, or included in, the compensation payable under the CCA.

So, what is an alternative arrangement, and should you sign one?

What are ‘Alternative Arrangements’?

An Alternative Arrangement is a written agreement between a tenement holder and a person who is affected or potentially affected by a nuisance impact (that would not otherwise be permitted at law) at a ‘sensitive receptor’, due to the tenement holder’s activities within a resource tenement.

‘Alternative Arrangement’ and ‘sensitive receptor’ are defined terms under an Environmental Authority, so they vary from case to case.  Under some Environmental Authorities, an Alternative Arrangement may apply to environmental nuisances such as dust, light and odour, but they generally only apply to noise.

Environmental Authority

Each authority to prospect, exploration permit, mining lease or petroleum lease (‘resource authority’) is granted subject to compliance with an Environmental Authority (‘EA’), which authorises environmental damage or nuisance (which would not otherwise be permitted under the Environmental Protection Act 1994) subject to certain conditions.

Environmental nuisance includes noise, so EAs typically provide noise limits for mining or petroleum activities.  Those limits are typically measured in A-weighted decibels (dBA), which measure the relative loudness of sounds in the air as perceived by the human ear.  There may be different noise limits depending on the time of day or the duration of the noisy activities.  Those noise limits typically only apply at ‘sensitive places’ or ‘sensitive receptors’(see below).

You can search for the EA applying to your land through the Department of Environment and Heritage Protection (EHP) website.

Sensitive receptors

Sensitive receptors or sensitive places are dwellings (homes) and certain public facilities such as hospitals and libraries.

Please contact us if you need specialist advice about temporary accommodation (which may or may not be classified as a dwelling if not occupied full time) or your rights to claim for noise on neighbouring land or roads within a resource tenement.

Negotiating an Alternative Arrangement

Alternative Arrangement clauses are often hidden in CCAs, so you need expert legal advice as to whether the compensation you are receiving under the CCA includes or excludes compensation for any noise in excess of the limits under the EA.

In addition to compensation for suffering noise nuisance, an Alternative Arrangement may include nuisance abatement measures (eg. sound-proofing, double glazing, air-conditioning) or provision of alternative accommodation for the period of the nuisance impact.

Unlike CCA negotiations, there is no legal requirement for you to negotiate an alternative arrangement.  You do not have to waive any of the requirements under the Environmental Authority.  However, it may be difficult to enforce the Environmental Authority and prove your losses later, if you suspect that the noise levels are above the legal limits.

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