Important Issues to Consider Regarding Mining Rights and Land Use Compliance
The issue of mining rights and land use compliance is briefly discussed below, giving you an indication how zoning restrictions could hamper the right to prospect or mine in South Africa. Anyone who wants to apply for mining rights in the country should study and ensure compliance with the Mineral and Petroleum Resources Development Act and all environmental management laws and regulations of South Africa.
However, failure to take zoning restrictions into consideration will mean that the person or company, even if they are complying with the terms of the Mineral and Petroleum Resources Development Act, will not be able to exercise their mining rights. As such, land use compliance and mining rights must be considered together. If there is a zoning restriction on the particular piece of land which, for instance, only allows for agricultural or residential usage of the land, the applicant must first apply for the lifting or changing of the zoning to include mining and prospecting usages of the land. For this, the mineral rights permit holder has to get the required land use planning permission before any prospecting or mining operations can commence.
Keep in mind that the right to mine on a particular piece of land does not override other laws of the country, not even local ordinances. As such, the mining rights are subject to compliance with other laws and ordinances. Therefore, it is essential to first apply for rezoning of the land where one wants to mine before commencing with mining operations. Because the land use and zoning requirements and limitations differ from province to province, it is important to review the legislation and restrictions of the specific province where the mining rights holder wants to mine. In this regard, the expertise of The Practice Group can come in handy. Our consultants work with zoning restrictions all the time and will be able to assist in the application for rezoning and the relevant approvals from the local authorities to ensure that the mining permit holder can commence with mining operations.
That being said, one cannot only look at the current legislation in the province and the local authority zoning restrictions in place now, but must also consider what legislation was in place when the mineral mining rights permit was applied for and received by the permit holder. The legislation may have changed over time. If, for instance, the company applied for mining and mineral rights on a particular piece of land and was granted the right under land use legislation at the time of application, allowing for mining without first having to get provincial or local authority permission, then the company does not have to do so, even if the law has changed in the meantime, before the company started their mining operations on the particular piece of land.
To avoid legal disputes and complications regarding mining rights and land use compliance, we recommend that prospective mining permit holders consider factors regarding zoning restrictions, such as:
• What is the town planning scheme regarding the particular piece of land?
• If there is a town planning scheme regarding the land, does the zoning allow for mining on that land?
• If there is no town planning scheme over the land, does the scheme exempt mining?
• If there is no mining exemption, does the scheme make provision for mining?
• If it is not the case, is it possible to argue that the scheme is not legally binding?
We highly recommend consulting an attorney specialising in mining and minerals rights and land use management, in addition to making use of our services to apply for authorisation to use the land for mining purposes if mining activities are restricted on the particular piece of land. Rather than waiting until the project must commence, do timely research regarding the particular property. It is possible to have us do a property due diligence to determine which land uses are allowed before you buy the specific property. With prospecting and mining operations being expensive, early application for rezoning will help minimise the risk of financial loss due to having to wait for rezoning approval.
Get professional guidance from our team and attorneys to help avoid costly mistakes regarding mineral rights and land use compliance.