Building project in a mining area: additional mineral-law permit

Section 153(1) MinroG connects the term mining area to defined mining-law areas. These include plots and plot sections within the boundaries of mine measurements and overlying claims. Storage fields and extraction fields are also included where the statutory exception for hydrocarbon deposits applies. Areas covered by an approved extraction operating plan for minerals owned by the landowner may also qualify.

A mining area may also be designated by an official decision under section 154(2) MinroG outside those areas. This concerns plots where planned and systematic extraction or storage operations are expected to cause ground deformation within the next fifteen years. The deformation must be capable of materially changing buildings or other facilities. The authority designates the affected plots and plot sections by decision.

For owners the first practical step is therefore to identify the exact area. The land register may provide an important indication. Section 155 MinroG provides that the authority informs the land-register court about plots or plot sections that qualify as mining areas. The land-register court then records this status ex officio. The entry does not replace a review of the specific project.

Under section 153(2) MinroG buildings and other facilities that are not mining facilities may only be built in a mining area with an authority permit. The rule also covers material extensions and alterations. A house, a larger commercial facility or a material alteration to an existing structure may therefore require a mineral-law permit in addition to the relevant building-law procedure.

The two procedures answer different questions. Building law assesses the project under the applicable regional building rules. The permit under section 153(2) MinroG also protects extraction or storage operations and considers possible mining-related ground deformation. A building permit therefore does not automatically resolve the mineral-law question.

The exception for mining facilities must be assessed for the actual project. The function of the facility and its connection with the mining operation are decisive. A label in the building application is not enough. The classification should be clear from the plans, the project description and the documents concerning the mining right.

Section 153(2) MinroG requires two copies of a description and plans of the project prepared by an authorised person. The documents must therefore do more than provide a general sketch. They should show which facility is to be built or altered on which plot section.

For the practical review this normally means an up-to-date site plan, understandable floor plans and sections as well as a description of the intended use. For an extension the plans should clearly show which parts are existing and which parts are new. The documents must also connect the project to the mining area and the expected operation.

Technical safeguards deserve their own explanation where ground deformation is possible. Depending on the project they may include the structural concept, foundation design, movement joints or monitoring. The statute does not provide one general checklist for every project. The documents must explain the specific risks so that the authority can assess section 156 MinroG.

Section 156(1) MinroG sets out three separate grounds for refusal. A permit must be refused if the planned building prevents or substantially impedes extraction or storage operations in the mining area. There is an important statutory exception: the mining-rights holder may accept the substantial impediment.

The second ground concerns ground deformation. A permit may be refused if a material change to the building or other facility cannot be ruled out because of ground deformation and suitable measures or safety precautions cannot prevent that risk. The authority must therefore assess the technical forecast together with the proposed safeguards.

The third ground applies if the planned building makes it impossible to extract the deposit as completely as possible. The review therefore concerns the specific deposit and the specific plan. A general statement that building is forbidden in every mining area would go too far. The project documents and mining records must establish the relevant facts.

Section 154(1) MinroG concerns plots outside certain mining-law areas where planned and systematic extraction or storage operations are expected to cause ground deformation within the next fifteen years. The deformation must be capable of materially changing buildings or other facilities. The forecast therefore concerns the effects of the operation rather than a general assumption about the ground.

The mining-rights holder must notify the authority of the plots or plot sections that may be affected. The documents include a list, a site plan, a mining survey map and a technical mining description. The authority then assesses whether the statutory conditions are met and which areas it designates as mining areas by decision.

Section 156(4) MinroG sets an important limit for the refusal assessment. A permit must not be refused if mining use of the plots is not expected within fifteen years. The mining-rights holder must make this credible. An up-to-date and comprehensible timetable for the mining operation is therefore important for the project side.

A sound sequence begins with the area review. Owners should clarify whether the area is defined by a mine measurement, an overlying claim, an extraction field, a storage field, an extraction operating plan or a decision under section 154 MinroG. The classification of the facility can then be discussed with the relevant authorities and professionals.

Building plans and mineral-law project documents should then be aligned. A site plan with inconsistent area descriptions makes a decision more difficult. The same applies to a building description that explains the use but says nothing about effects on extraction or storage operations.

Section 153(2) MinroG generally provides a decision period of three months from submission of the application. The authority may extend this period by up to three months by decision if the matter cannot be clarified within the first three months in the circumstances of the case. Project schedules should allow for this possibility. Work should begin only once the permits required for the specific project and their conditions are clear.

When buying a property any indication of a mining area belongs in the legal and technical review. The land-register extract is a starting point. Decisions, site plans, project documents and information from the mining-rights holder should also be checked. The review must concern the actual plot and the planned building.

Before commissioning construction it should be clear who prepares the description and plans required by section 153(2) MinroG. It is equally important to identify who provides technical evidence on ground deformation and who answers questions from the authority. The contract should describe these responsibilities clearly.

If the permit position is open the contract should reflect the outstanding conditions. These may concern particular documents, clarification of the mining use or a coordinated application. A general promise that the property is buildable does not replace the review under sections 153 and 156 MinroG.

A common mistake is to consider only the building permit. If the mining-area issue is addressed after the application has been filed, plans and the schedule may need to be changed later. The additional permit should therefore be reviewed during project development.

Unclear area descriptions create another problem. A decision may concern plot sections. If the building plan, land-register documents and technical mining description use different designations there is no reliable basis for a decision.

Technical statements must also be specific. A general assurance that the building will have a safe foundation does not answer the question of possible ground deformation. The documents must explain the effects and the planned safeguards. Finally the mining timetable should be checked because the expected extraction period may be relevant under section 156(4) MinroG.