Activity approval requirements
State Environmental Planning Policy (Resources and Energy) 2021 provides that mineral exploration (and fossicking) is development permissible without consent and is therefore subject to assessment under part 5 of the Environmental Planning and Assessment Act 1979 (EP&A Act). The NSW Resources Regulator is the determining and approval authority for all exploration proposals, other than those identified in Schedule 1, clause 5 of the State Environmental Planning Policy (Planning Systems) 2021.
An exploration title (such as an exploration licence or assessment lease) issued under the Mining Act 1992 is subject to a statutory condition that the title holder must not carry out an 'assessable prospecting operation' unless an exploration activity approval has been obtained (sections 23A and 44A).
Assessable and exempt prospecting operations
Assessable prospecting operation means any exploration activity that is not exempt development within the meaning of State Environmental Planning Policy (Resources and Energy) 2021. For further information refer to our Fact sheet Exploration reforms – activity approvals (PDF, 66.48 KB).
The approval process for assessable prospecting operations has been designed around the environmental assessment requirements under part 5 of the Environmental Planning and Assessment Act 1979. When prospecting is proposed on a mining lease, reference should be made to our Fact sheet Prospecting on a mining lease (PDF, 239.54 KB) to determine whether approval from the Resources Regulator is required.
Certain exploration activities with minimal environmental impact have been identified as exempt development under the State Environmental Planning Policy (Resources and Energy) 2021. These minimal impact activities do not require further environmental assessment or approval before being carried out.
Under the State Environmental Planning Policy (Resources and Energy) 2021, the following activities are exempt development, provided they are of minimal environmental impact:
- The construction, maintenance and use of equipment for monitoring weather, noise, air, groundwater or subsidence.
- Low intensity exploration activities, including:
- geological mapping and airborne surveying
- sampling and coring using hand-held equipment
- geophysical (but not seismic) surveying and downhole logging
- accessing of areas by vehicle that does not involve the construction of an access way, such as a track or road.
These activities can be undertaken without approval provided that they are on land that:
- is not within an environmentally sensitive area of state significance, or
- is within a state conservation area, but is not otherwise on land referred to in State Environmental Planning Policy (Resources and Energy) 2021 as being environmentally sensitive area of state significance.
Assessable prospecting operations
All 'assessable prospecting operations' require further approval from the Minister (or delegate) before they can be carried out. Assessable prospecting operation means any exploration activity that is not exempt development within the meaning of clause 10 of the State Environmental Planning Policy (Resources and Energy) 2021.
Exploration activity application and assessment process
Application form and lodgement
Applications for exploration activity approvals can be lodged online via the Regulator Portal using the Assessable Prospecting Operation (APO) application form (previously known as Form ESF4: Application to conduct exploration activities). The APO asks specific questions about the proposed activity, with the answers identifying the level of assessment required. The APO also identifies when additional supporting information must be submitted to satisfy relevant statutory requirements.
Note: For the purposes of conditions of some older authorities/titles, the application form replaces the surface disturbance notice (SDN) for the notification of exploration activities.
Assessment and determination
For more information as to the requirements for obtaining approval to carry out activities refer to ESG5: Assessment requirements for exploration activities. (PDF, 664.97 KB)
The application process for exploration activities is summarised below.
Complying exploration activities (excludes petroleum)
To streamline the assessment process, a subset of activities requiring approval (being assessable prospecting operations) have been identified as being unlikely to have a significant environmental impact if carried out in a particular manner. These activities are referred to as complying exploration activities (CEAs). (Note: Petroleum exploration is excluded from comprising a CEA).
A streamlined assessment pathway has been developed for these activities.
These activities can be assessed under the streamlined CEAs assessment pathway if they:
- satisfy location requirements set out in ESG5: Assessment requirements for exploration activities. (PDF, 664.97 KB)
- satisfy the impact thresholds and criteria set out in ESG5: Assessment requirements for exploration activities. (PDF, 664.97 KB) and
- can be carried out in accordance with the Exploration codes of practice.
Non-complying exploration activities
Applications for exploration activities that do not meet the CEA criteria must be accompanied by additional environmental impact assessment information. Applications can be lodged online via the Regulator Portal using the Assessable Prospecting Operation (APO) application form (previously known as Form ESF4: Application to conduct exploration activities). The APO asks specific questions about the proposed activity, with the answers identifying the level of assessment required. The APO also identifies when additional supporting information must be submitted to satisfy relevant statutory requirements.
The additional information can be provided in the form of:
- a targeted Review of Environmental Factors (REF). A targeted REF would generally be suitable for activities that only slightly deviate from one or more of the CEA criteria. The information in a targeted REF only needs to specify the potential environmental impacts associated with the departure(s) from the relevant CEA location restriction, impact criteria, or management control; or
- a guideline REF prepared in accordance with ESG2: Guidelines for preparing a review of environmental factors (PDF, 528.95 KB). This may be appropriate for activities that significantly depart from the CEA criteria, but are not likely to have a significant impact on the environment. A guideline REF is required for all petroleum exploration activities; or
- an environmental impact statement (EIS) or species impact statement (SIS). An EIS will be required for activities likely to significantly affect the environment, and a SIS will be required where the activity will be carried out in critical habitat or is only likely to have a significant impact on a threatened species, population, or ecological communities or their habitats.
Note: An agricultural impact statement (AIS) is required to accompany certain REFs for non-CEAs where there may be an impact on agricultural resources or industries. In preparing an AIS, proponents should refer to Guideline for agricultural impact statements at the exploration stage (PDF, 188.38 KB).
Exploration activities requiring approval under other legislation
Certain exploration activities may also require approval under other legislation, for example:
- The State Environmental Planning Policy (Planning Systems) 2021 specifies types of exploration activities, which require approval by the Minister for Planning.
- Other legislation may apply to certain activities, for example the Biodiversity Conservation Act 2016 or the Water Management Act 2000.
- The Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth) requires approval by the Commonwealth Environment Minister for certain 'actions' that have an effect on matters of national environmental significance.
- The Protection of the Environment Operations Act 1997 requires an environment protection licence for most petroleum exploration, including coal seam gas;
- The Offshore Minerals Act 1999 applies to activities in NSW waters (within three nautical miles of the coast) and the Offshore Minerals Act 1994 (Commonwealth) applies beyond NSW waters.
It is the responsibility of the title holder to identify these requirements and ensure that all approvals are in place before commencing an activity.