King & Wood Mallesons

Asia-Pacific 100 position: 2

BCIPA does not apply to works on a mining lease

By Shannon Etwell and Scott Budd

The Queensland Supreme Court in Agripower Australia Ltd v J&D Rigging Pty Ltd & Ors [2013] QSC 164 has ruled that mining leases are not ‘land’ for the purposes of section 10(1) of the Building and Construction Industry Payments Act 2004 (Qld) (BCIPA) as mining leases do not give rise to an estate or interest in the land over which they are granted. As a result, the court determined that dismantling mining plant was not ‘construction work’ under a ‘construction contract’ for the purposes of BCIPA.

But the decision does not necessarily mean that all work carried out on a mining lease is excluded from the BCIPA. Work on a mining lease that is ‘building work’ under the Queensland Building Services Authority Act 1991 (Qld) (QBS Act) will still be ‘construction work’ under a ‘construction contract’ for the purposes of BCIPA.

The first respondent, J&D Rigging, was appointed by the current holder of a mining lease as operator of the Skardon River Mine. The appointment allowed J&D to dismantle the mining plant installed on the land the subject of the mining leases. The mining plant consisted of a 300-tonne kiln, 10m-high mixing tanks, 6m-high sheds and 12m-high storage bins. The mining plant was attached to the land by (among other things) concrete footing and slabs…

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