Land access perspectives in unconventional gas—where is the balance?

Abstract

A landholder or occupier is generally entitled to control access to their property. An unauthorised entry onto a person’s property will provide the landholder with the entitlement to commence an action in trespass subject to statutory protection being available to the trespasser. Land access is a significant factor in the public debate surrounding the recovery of unconventional gas that requires access for tenure holders for various purposes. This paper first discusses the common law background to the entitlement of landholders to control access to land. The paper will then analyse the statutory regulatory structure applying in Queensland, NSW, WA and SA that entitles access to land for tenure holders in relation to unconventional gas. This paper will discuss the nature of property and perceptions of property that impact on the context in which negotiations occur between landholders and tenure holders. The paper will discuss some of the reasons the issue of access goes beyond mere legal rights from the perspective of the landholder, and how this may impact the approach taken by tenure holders and landholders in the negotiations for access to land. For the benefit of both the tenure holder and the landholder, the paper will suggest factors that may assist in promoting good negotiated outcomes.