45Prohibition of work near dwellings and certain places and sites

45 Prohibition of work near dwellings and certain places and sites S. 45(1) amended by Nos 18/1997 s. 3(1)(a), 82/2000 s. 45(1)(a) (b)(d). (1) A licensee must not, except as provided by subsection (2), (4), (4A) or (4B) do any work under the licence— (a) within 100 metres laterally of— S. 45(1)(a)(i) amended by No. 63/2006 s. 33(2)(a). (i) a dwelling house that existed before an approved work plan was registered in respect of the licence; or S. 45(1) (a)(ii)–(x) repealed by No. 63/2006 s. 33(2)(b). S. 45(1)(a)(xi) amended by Nos 93/1995 s. 218(1) (Sch. 2 item 5.1), 18/1997 s. 3(1)(b), 93/1995 s. 218(2) (Sch. 2 item 9.1), substituted by Nos 82/2000 s. 45(1)(c), 16/2006 s. 198(Sch. 2 item 5(5)), repealed by No. 10/2014 s. 23(1). S. 45(1)(a)(xii) substituted by Nos 82/2000 s. 45(1)(c), 63/2006 s. 33(2)(c), 16/2006 s. 198(Sch. 2 item 5(5)), repealed by No. 10/2014 s. 23(1). S. 45(1)(a)(xiii) inserted by No. 93/1995 s. 218(1) (Sch. 2 item 5.2), repealed by No. 10/2014 s. 23(1). (b) within 100 metres below any area prohibited by paragraph (a). S. 45(1A) inserted by No. 82/2000 s. 45(2), amended by No. 14/2025 s. 46(1). (1A) Despite subsection (1), a licensee may do any work prohibited by subsection (1) if the licensee is not required to obtain a permit for that work under section 42(7) or 42A. S. 45(1B) inserted by No. 82/2000 s. 45(2), amended by No. 14/2025 s. 46(2). (1B) Subsection (1A) applies regardless of whether the licensee has any of the consents referred to in subsection (2). S. 45(2) substituted by No. 63/2006 s. 33(3). (2) A licensee may, with the consent of the owners of the land on which a dwelling house is situated, do work within the area prohibited by subsection (1)(a)(i) in relation to that dwelling house or within 100 metres below that area. S. 45(3) amended by Nos 93/1995 s. 218(1)(2) (Sch. 2 items 5.3, 9.2) (as amended by No. 66/1997 s. 10), 18/1997 s. 3(2), repealed by No. 82/2000 s. 45(3), new s. 45(3) inserted by No. 63/2006 s. 33(3). (3) A consent given by any owner of land under subsection (2)— (a) must be in writing and in the prescribed form (if any); and (b) cannot be withdrawn by that owner or by any subsequent owner of the land; and (c) binds all subsequent owners and occupiers of the land. S. 45(4) repealed by No. 10/2014 s. 23(1). S. 45(4A) inserted by No. 18/1997 s. 3(3), amended by No. 63/2006 s. 33(4), repealed by No. 10/2014 s. 23(1). S. 45(4B) inserted by No. 18/1997 s. 3(3), repealed by No. 10/2014 s. 23(1). S. 45(5) amended by Nos 18/1997 s. 3(4), 82/2000 s. 45(4), substituted by No. 63/2006 s. 33(5), amended by No. 10/2014 s. 23(2). (5) An owner who consents under subsection (2) may make the consent conditional on the following matters only— (a) specified distance restrictions; (b) specified depth restrictions. S. 45(6) substituted by No. 82/2000 s. 45(5), repealed by No. 16/2006 s. 198(Sch. 2 item 5(6)). S. 45(7) inserted by No. 63/2006 s. 33(6). ***dwelling house*** means a building that is used primarily, or is intended, adapted or designed to be used primarily, as a residence, (including kitchen, bathroom and sanitary facilities) for an occupier who has a right to the exclusive use of it and includes a building that may, in addition to its primary residential use, be used for small-scale commercial activities; S. 45(7) def. of *work* amended by No. 10/2014 s. 23(3). ***work*** means any of the following activities— (a) any excavation for the purposes of mining or bulk sampling of ore; (b) any excavation for the purposes of exploration using mechanised equipment; (c) any construction or use of any opening, excavation, structure or equipment for access to, or ventilation of, underground workings; (d) any treatment, extraction, handling or processing of minerals using plant or equipment (other than hand-operated equipment); (e) any construction or use of roads for the haulage of ore, waste rock or overburden; (f) the bulk storage of ore, waste rock or overburden; (g) any construction or use of dams for the storage of tailings, process water or groundwater; (h) any construction or use of other facilities for the treatment, handling or storage of tailings or other wastes; (i) any drilling (unless carried out with hand-held equipment); (j) any other activity specified in the regulations— but does not include exploring for minerals on land— (k) without using equipment (other than non-mechanical hand tools) to excavate on the land; and (l) without using explosives on the land; and (m) without removing or damaging any tree or shrub on the land. S. 45(8) inserted by No. 63/2006 s. 33(6). (8) For the purposes of subsection (1)(a)(i) the distance of 100 metres is to be measured from— (a) the boundary of the allotment on which the dwelling house is situated if the area of the allotment is 0⋅4 hectares or less; or (b) in any other case, a distance of 25 metres from the outer edge of any eave forming part of the dwelling house. S. 45A inserted by No. 63/2006 s. 34.