Environmental Management and Pollution Control Act 1994

Environmental Management and Pollution Control Act 1994

An Act to provide for the management of the environment and the control of pollution in the State, to repeal the Environment Protection Act 1973 and the Chlorofluorocarbons and other Ozone Depleting Substances Control Act 1988 and to amend the Local Government (Building and Miscellaneous Provisions) Act 1993

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Environmental Management and Pollution Control Act 1994 .

2.   Commencement

The provisions of this Act commence on a day or days to be proclaimed.

3.   Interpretation

(1)  In this Act, unless the contrary intention appears –

Agency has the same meaning as in the Tasmanian State Service Act 1984 ;

air includes any layer of the atmosphere;

article includes a system;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000]

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] authorization means an individual authorization or a general authorization;

authorized officer means an authorized officer under section 20 ;

best practice environmental management, in relation to an activity, means the management described in section 4 ;

Board means the Board of Environmental Management and Pollution Control established under section 12 ;

business includes a business not carried on for profit or gain or any activity undertaken by government or a public authority;

coastal waters of the State means any part of the sea that is from time to time included in the coastal waters of the State by virtue of the Coastal Waters (State Powers) Act 1980 of the Commonwealth;

condition includes a limitation;

contravene includes fail to comply with;

controlled activity means –

(a) the use of a controlled substance for manufacturing or industrial purposes; or

(b) the manufacture, installation, service or decommissioning of a controlled article;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] controlled article means an article –

(a) that contains a controlled substance; or

(b) that uses or is designed or intended to use a controlled substance in its operation –

but does not include an article that contains a controlled substance and has as its sole or primary function the enabling of the transference of the controlled substance from the ownership or control of one person to the ownership or control of another person;

controlled substance means –

(a) a substance specified in Schedule 5 , whether existing alone or in a mixture; or

(b) [Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] a substance specified in Schedule 1 to the Ozone Protection Act 1989 of the Commonwealth, whether existing alone or in a mixture, other than a chemical product in respect of which section 18(1) or (2) of the Agricultural and Veterinary Chemicals (Control of Use) Act 1995 applies;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] controlled waste means –

(a) a substance that is controlled waste within the meaning of –

(i) the National Environment Protection Measure entitled the Movement of Controlled Waste Between States and Territories made by the National Environment Protection Council on 26 June 1998, as amended from time to time; or

(ii) any National Environment Protection Measure substituted for the Measure referred to in paragraph (a) , as amended from time to time; and

(b) a substance that is prescribed by the regulations to be controlled waste;

council has the same meaning as in the Local Government Act 1993 ;

council officer means an employee of a council appointed under section 21 ;

Director means the Director of Environmental Management holding office under section 18 ;

director, in relation to a body corporate, includes –

(a) a person occupying or acting in the position of a director or member of the governing body of the body corporate, by whatever name called and whether or not validly appointed to occupy or duly authorized to act in the position; and

(b) any person in accordance with whose directions or instructions the directors or members of the governing body are accustomed to act;

emergency authorization means an authorization referred to in section 34 ;

environment means components of the earth, including –

(a) land, air and water; and

(b) any organic matter and inorganic matter and any living organism; and

(c) human-made or modified structures and areas –

and includes interacting natural ecosystems that include components referred to in paragraph (a) or (b) ;

environment protection notice means an environment protection notice issued under Division 2 of Part 4 ;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] environment protection policy means an environment protection policy made and in force under Division 1A of Part 7 ;

environmental agreement means an environmental agreement entered into under section 28 ;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] environmental audit has the meaning given by section 5B ;

environmental harm means environmental harm as described in section 5 ;

Environmental Impact Assessment Principles means the principles set out in section 74 ;

environmental improvement programme means a programme referred to in section 37 ;

environmental infringement notice means a notice referred to in section 67 ;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] environmental nuisance means –

(a) the emission of a pollutant that unreasonably interferes with, or is likely to unreasonably interfere with, a person's enjoyment of the environment; and

(b) any emission specified in an environment protection policy to be an environmental nuisance;

environmentally relevant activity means an activity which may cause environmental harm, and includes a level 1, level 2 or level 3 activity and an environmental nuisance;

financial assurance means a financial assurance referred to in section 35 ;

Fund means the Environment Protection Fund established under section 97 ;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] general authorization means a general authorization issued under section 91A ;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] general environmental duty means the duty of care described in section 23A(1) ;

general manager means the general manager of a council;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] individual authorization means an individual authorization issued under section 83 ;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] internal marine waters means all waters adjacent to the State which –

(a) are on the landward side of the baselines by reference to which the territorial limits of Australia are defined for the purposes of international law; and

(b) are tidal;

interstate authorization means a permit, licence or similar authorization issued to a person to do any act or thing in relation to a controlled substance, controlled article or controlled activity under a law of the Commonwealth, a State, other than Tasmania, or a Territory;

level 1 activity means an activity which may cause environmental harm and in respect of which a permit under the Land Use Planning and Approvals Act 1993 is required but does not include a level 2 activity or a level 3 activity;

level 2 activity means an activity specified in Schedule 2 ;

level 3 activity means an activity which is a project of State significance under the State Policies and Projects Act 1993 ;

noise includes vibration;

occupier, in relation to –

(a) a place in respect of which different parts are occupied by different persons, means the respective persons occupying each part and includes a licensee and the holder of any right at law to use or carry on operations at that place but does not include a mortgagee who has not assumed active management of that place; and

(b) any other place, includes a licensee and the holder of any right at law to use or carry on operations at that place but does not include a mortgagee who has not assumed active management of that place;

officer, in relation to a body corporate, means –

(a) a director of the body corporate; or

(b) the chief executive officer of the body corporate; or

(c) a receiver or manager of any property of the body corporate or a liquidator of the body corporate –

and includes, in relation to a contravention or alleged contravention of this Act by the body corporate, an employee of the body corporate with responsibilities in respect of the matters to which the contravention or alleged contravention relates;

owner means any one or more of the following:

(a) in the case of a fee simple estate in land, the person in whom that estate is vested;

(b) in the case of land not registered under the Land Titles Act 1980 and subject to a mortgage, the person having, for the time being, the equity of redemption in that mortgage;

(c) in the case of land held under a tenancy for life, the person who is the life tenant;

(d) in the case of land held under a lease for a term of not less than 99 years or for a term of not less than such other prescribed period, the person who is the lessee of the land;

(e) in the case of land in respect of which a person has a prescribed interest, that person;

(f) if the land is unalienated from the Crown, the Crown;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] Panel means the Environment Protection Policy Review Panel established by section 96A(1) ;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] person includes any body of persons, corporate or unincorporate;

person in charge, in relation to a vehicle, does not include a lessor, mortgagee or financial institution that has not assumed active use of that vehicle;

pollutant includes –

(a) a gas, liquid or solid; or

(b) an odour; or

(c) an organism (whether alive or dead), including a virus; or

(d) energy, including noise, radioactivity and electromagnetic radiation; or

(e) a combination of pollutants –

that may cause environmental harm;

pollute means –

(a) discharge, emit, deposit or disturb pollutants; or

(b) cause or fail to prevent the discharge, emission, depositing, disturbance or escape of pollutants;

public authority means –

(a) any council; or

(b) any body corporate established under an enactment having jurisdiction limited to a district, locality or part of the State; or

(c) any body corporate established under an enactment or in the exercise or prerogative rights of the Crown to administer or control any department, business, undertaking or public institution on behalf of the State;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] reasonable costs and expenses means any reasonable costs and expenses assessed in accordance with section 5A ;

recognized interstate authorization means an interstate authorization recognized under section 88 ;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] regulations means regulations made and in force under this Act;

related body corporate has the same meaning as in the Corporations Law ;

repealed Act means the Environment Protection Act 1973 ;

sell includes –

(a) offer or display for sale; and

(b) keep or have in possession for sale; and

(c) barter or exchange; and

(d) agree to sell; and

(e) send, forward or deliver for sale; and

(f) supply on a gratuitous basis for commercial promotional purposes; and

(g) authorize, direct, permit, cause or attempt any act referred to in paragraph (a) , (b) , (c) , (d) , (e) or (f) ;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] State Policy has the same meaning as in the State Policies and Projects Act 1993 ;

vehicle includes any vessel or aircraft;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] waste means any –

(a) discarded, rejected, unwanted, surplus or abandoned matter, whether of any value or not; or

(b) discarded, rejected, unwanted, surplus or abandoned matter, whether of any value or not, intended –

(i) for recycling, reprocessing, recovery, reuse or purification by a separate operation from that which produced the matter; or

(ii) for sale;

water includes water underground but does not include water in any tank, pipe or cistern in use or destined for use;

withdrawal notice means a notice served on a person under section 68 .

(2)  Words and expressions used both in this Act and in the Land Use Planning and Approvals Act 1993 have in this Act, unless the contrary intention appears, the same respective meanings as they have in that Act.

4.   Best practice environmental management

(1)  For the purposes of this Act, the best practice environmental management of an activity is the management of the activity to achieve an ongoing minimization of the activity's environmental harm through cost-effective measures assessed against the current international and national standards applicable to the activity.

(2)  In determining the best practice environmental management of an activity, regard must be had to the following measures:

(a) strategic planning by the person carrying out, or proposing to carry out, the activity;

(b) administrative systems implemented by the person, including staff training;

(c) public consultation carried out by the person;

(d) product and process design;

(e) waste prevention, treatment and disposal.

(3)  Subsection (2) does not limit the measures to which regard may be had in determining the best practice environmental management of an activity.

5.   Environmental harm

(1)  For the purposes of this Act, environmental harm is any adverse effect on the environment (of whatever degree or duration) and includes an environmental nuisance.

(2)  For the purposes of this Act, the following provisions are to be applied in determining whether environmental harm is material environmental harm or serious environmental harm:

(a) environmental harm is to be treated as serious environmental harm if –

(i) it involves an actual adverse effect on the health or safety of human beings that is of a high impact or on a wide scale; or

(ii) it involves an actual adverse effect on the environment that is of a high impact or on a wide scale; or

(iii) it results in actual loss or property damage of an amount, or amounts in aggregate, exceeding ten times the threshold amount;

(b) environmental harm is to be treated as material environmental harm if –

(i) it consists of an environmental nuisance of a high impact or on a wide scale; or

(ii) it involves an actual adverse effect on the health or safety of human beings that is not negligible; or

(iii) it involves an actual adverse effect on the environment that is not negligible; or

(iv) it results in actual loss or property damage of an amount, or amounts in aggregate, exceeding the threshold amount.

(3)  For the purposes of subsection (2) , loss includes the reasonable costs and expenses that would be incurred in taking all reasonable and practicable measures to prevent or mitigate the environmental harm and to make good resulting environmental damage.

(4)  For the purposes of subsection (2) , threshold amount means $5 000, or if a greater amount is prescribed by regulation, that amount.

(5)  For the purposes of this Act, environmental harm is caused by pollution –

(a) whether the harm is a direct or indirect result of the pollution; and

(b) whether the harm results from the pollution alone or from the combined effects of the pollution and other factors.

5A.   Assessment of reasonable costs and expenses

[Section 5A Inserted by No. 56 of 2000, s. 5, Applied:14 Jul 2000] For the purposes of this Act, the reasonable costs and expenses that have been or would be incurred by the Director, a council or some other public authority or person in taking any action are to be assessed by reference to the reasonable costs and expenses that would have been or would be incurred in having the action taken by independent contractors engaged for that purpose.

5B.   Environmental audit

[Section 5B Inserted by No. 56 of 2000, s. 5, Applied:14 Jul 2000] An environmental audit is a documented, systematic, objective assessment of any one or more of the following:

(a) the ability of management systems to adequately manage waste and control pollution;

(b) the extent to which actions required to be taken, or outcomes required to be achieved, for waste management and pollution control have been taken or achieved;

(c) the extent, nature and source of wastes and emissions generated by an activity or process;

(d) the likelihood of waste management problems and pollution control problems occurring and the adequacy of safeguards in place to prevent their occurrence or limit their impact on the environment;

(e) the degree of compliance with –

(i) any conditions or restrictions applied by the Board to a permit issued under the Land Use Planning and Approvals Act 1993 ; or

(ii) any conditions imposed by an environment protection notice; or

(iii) any other requirement of this Act;

(f) any other matter specified by the Board for the purpose of determining compliance with the Act, a State Policy or an environment protection policy.

6.   Responsibility for pollution

For the purposes of this Act, the occupier or person in charge of a place or vehicle at or from which a pollutant escapes or is discharged, emitted or deposited is taken to have polluted the environment with the pollutant (but without affecting the liability of any other person in respect of the escape, discharge, emission or depositing of the pollutant).

7.   Act binds Crown

This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.

8.   Objectives to be furthered

It is the obligation of any person on whom a function is imposed or a power is conferred under this Act to perform the function or to exercise the power in such a manner as to further the objectives set out in Schedule 1 .

9.   Interaction with other Acts

(1)  This Act does not derogate from the provisions of any other Act.

(2)  This Act does not apply to circumstances to which the Environment Protection (Sea Dumping) Act 1987 or the Pollution of Waters by Oil and Noxious Substances Act 1987 applies.

10.   Civil remedies not affected

The provisions of this Act do not limit or derogate from any civil right or remedy and compliance with this Act does not necessarily indicate that a common law duty of care has been satisfied.

11.   Amendment of Schedule 2

(1)  The Governor may, by order, amend Schedule 2 –

(a) by omitting any activity specified in the Schedule; or

(b) subject to subsection (4) , by inserting any activity in the Schedule.

(2)  The Governor may, by order, repeal Schedule 2 and substitute another Schedule specifying activities.

(3)  Section 47 (3) , (3A) , (4) , (5) , (6) and (7) of the Acts Interpretation Act 1931 applies to an order made under this section as if it were a regulation.

(4)  An activity may be inserted in Schedule 2 , or may be included in another Schedule specifying environmentally relevant activities, only if the Governor is of the opinion that –

(a) a pollutant will or may be released into the environment when the activity is carried out; and

(b) the release of the pollutant will or may cause environmental harm.

PART 2 - Administration

Division 1 - Administrative bodies

12.   Establishment of Board of Environmental Management and Pollution Control

(1)  A Board of Environmental Management and Pollution Control is established.

(2)  The Board is part of the State's resource management and planning system the objectives of which are set out in Schedule 1 .

13.   Constitution of Board

(1)  The Board consists of –

(a) the Secretary of the Department who is the chairperson of the Board; and

(b) [Section 13 Subsection (1) amended by No. 56 of 2000, s. 6, Applied:14 Jul 2000] the Director who is the deputy chairperson of the Board; and

(c) a person with practical knowledge of, and experience in, environmental management in industry, commerce or economic development; and

(d) a person with practical knowledge of, and experience in, environmental conservation, environmental protection, natural resources management, management and prevention of waste or environmental health; and

(e) a person with practical knowledge of, and experience in, environmental management in local government.

(2)  The Board is to include at least one person of each sex.

(3)  The members of the Board referred to in subsection (1) (c) , (d) or (e) are to be appointed by the Governor.

(4)  Schedules 3 and 4 have effect with respect to the membership and meetings of the Board.

14.   Functions and powers of Board

(1)  The functions of the Board are to administer and enforce the provisions of this Act, and in particular, to use its best endeavours –

(a) to protect the environment of Tasmania; and

(b) to further the objectives of this Act; and

(c) [Section 14 Subsection (1) amended by No. 56 of 2000, s. 7, Applied:14 Jul 2000] to ensure the prevention or control of any act or omission which causes or is capable of causing pollution; and

(d) to co-ordinate all activities, whether governmental or otherwise, as are necessary to manage the use of, protect, restore or improve the environment of Tasmania; and

(e) to ensure that valuation, pricing and incentive mechanisms are considered in policy making and programme implementation in environmental issues.

(2)  The Board must perform such other functions as are conferred on it by or under this Act or any other Act.

(3)  The Board may do all things necessary or convenient to be done for or in connection with, or incidental to, the performance of its functions.

15.   Board subject to control of Minister

(1)  Subject to this section, the Minister may give directions in writing to the Board requiring the Board to refer a matter for its decision under this Act to the Minister.

(2)  The Board must comply with any direction given to it by the Minister under subsection (1) .

(3)  Where the Minister gives directions to the Board, the Minister must cause the directions to be published in the Gazette within 14 days from the date on which they were given.

(4)  The Board is not subject to the control and direction of the Minister in respect of any decision to institute, or approve of the institution of, criminal or civil proceedings.

(5)  Where the Minister has required the Board to refer a matter for its decision under this Act to the Minister –

(a) the Board must provide recommendations to the Minister on the matter; and

(b) the Minister must cause the recommendations to be published in the Gazette within 14 days from the date on which they were received; and

(c) the Minister may make a decision in relation to that matter.

(6)  A decision made by the Minister under subsection (5) takes effect as if it were a decision of the Board.

16.   Delegation

(1)  The Board may, by resolution, delegate any of its functions or powers other than this power of delegation.

(2)  The Director may delegate any of the Director's functions or powers other than this power of delegation.

(3)  If any services are provided by a delegate employed in any Agency or State authority, any fee payable in respect of those services is payable to the Agency or State authority in which that person is employed.

(4)  For the purposes of subsection (3) , State authority has the same meaning as in the Tasmanian State Service Act 1984 .

17.   Committees

The Board may establish committees, which may include persons who are not members of the Board, for the purpose of advising it on any matter arising in relation to the performance of its functions.

18.   Director of Environmental Management

(1)  The Governor may appoint a person employed under the Tasmanian State Service Act 1984 to be Director of Environmental Management and that person holds office in conjunction with a position or an office under that Act.

(2)  The Director has the functions and powers specified in this Act or any other Act.

19.   Staff

(1)  Subject to and in accordance with the Tasmanian State Service Act 1984 , persons may be appointed or employed for the purposes of this Act.

(2)  The Secretary of the Department may make arrangements with the Head of an Agency, within the meaning of the Tasmanian State Service Act 1984 , for such employees in that Agency as may be considered necessary to be made available to perform duties and functions under this Act, and those employees may hold office in conjunction with their positions in the State Service.

20.   Authorized officers

(1)  The Director is an authorized officer for the purposes of this Act.

(2)  The Secretary of the Department may –

(a) appoint persons employed in the Department; and

(b) appoint persons employed in another Agency, with the consent of the Head of that Agency –

as authorized officers for the purposes of this Act, and those persons may exercise the powers and perform the functions of an authorized officer in conjunction with their positions or offices under the Tasmanian State Service Act 1984 .

(3)  All police officers, within the meaning of the Police Regulation Act 1898 , are authorized officers.

(4)  The Secretary of the Department may, with the consent of any person, appoint that person or an employee of that person as an authorized officer.

(5)  A person appointed as an authorized officer is to be appointed on such terms and conditions as the Secretary of the Department determines.

20A.   Duty of council to prevent or control pollution

[Section 20A Inserted by No. 56 of 2000, s. 8, Applied:14 Jul 2000]

(1)  In this section,

prescribed activity means –

(a) an activity that is a level 2 activity; and

(b) an activity that is a level 3 activity in respect of which the council has not, by an order under section 26 of the State Policies and Projects Act 1993 , been made responsible for the enforcement of conditions upon which the activity may proceed.

(2)  In relation to activities other than prescribed activities, a council must use its best endeavours to prevent or control acts or omissions which cause or are capable of causing pollution.

21.   Council officers

A council may appoint an employee of the council to be a council officer for the purposes of this Act.

Division 2 - Access to information

22.   Registers of environmental management and enforcement instruments

(1)  Subject to section 23 , the Board must keep a register containing particulars of –

(a) any environmental agreement entered into or approved under section 28 ; and

(b) any environmental audit required by the Board under section 30 ; and

(c) any emergency authorization issued under section 34 ; and

(d) any financial assurance required under section 35 ; and

(e) any environmental improvement programme approved under section 40 , and any amendment or revocation of any such programme; and

(f) any environment protection notice issued under section 44 , and any amendment or revocation of any such notice.

(1A)  [Section 22 Subsection (1A) inserted by No. 56 of 2000, s. 9, Applied:14 Jul 2000] Subject to section 23 , a council must keep a register containing particulars of –

(a) any environment protection notice issued under section 44(2) by a council officer who is an employee of that council; and

(b) any amendment or revocation of any notice referred to in paragraph (a) .

(2)  [Section 22 Subsection (2) amended by No. 56 of 2000, s. 9, Applied:14 Jul 2000] A person is, on payment of the prescribed fee, entitled to search a register referred to in subsection (1) or (1A) .

23.   Trade secrets

(1)  [Section 23 Subsection (1) substituted by No. 56 of 2000, s. 10, Applied:14 Jul 2000] If it appears to the Board or a council that –

(a) any information that could be kept as a trade secret would be available to the public; and

(b) the release of that information would be likely to cause financial loss to any person –

the Board or council must consult with that person before including the information on any register kept under this Act, and that person may, within 14 days, make representations to the Board or council.

(2)  [Section 23 Subsection (2) amended by No. 56 of 2000, s. 10, Applied:14 Jul 2000] After considering any representations made under subsection (1) , the Board or council must–

(a) determine whether the information is to be included in the register; and

(b) serve notice on any person who made representations of its decision.

(3)  [Section 23 Subsection (3) amended by No. 56 of 2000, s. 10, Applied:14 Jul 2000] A person who is served with a notice under subsection (2) (b) and who is aggrieved by a decision of the Board or a council to include information on a register may appeal to the Appeal Tribunal.

(4)  A person must not disclose any information relating to a trade secret used in any undertaking or equipment that has been obtained by the person in the administration of this Act or the repealed Act unless the disclosure is made –

(a) with the consent of the person carrying on the undertaking or operating the equipment; or

(b) for the purpose of any legal proceedings under this Act or the repealed Act .

Penalty:  Fine not exceeding 5 000 penalty units or imprisonment for a term not exceeding 2 years or both.

PART 2A - Environmental duties

23A.   General environmental duty

[Section 23A Inserted by No. 56 of 2000, s. 11, Applied:14 Jul 2000]

(1)  A person must take such steps as are practicable or reasonable to prevent or minimise environmental harm or environmental nuisance caused, or likely to be caused, by an activity conducted by that person.

(2)  In determining whether a person has complied with the general environmental duty, regard must be had to all the circumstances of the conduct of the activity, including but not limited to –

(a) the nature of the harm or nuisance or potential harm or nuisance; and

(b) the sensitivity of the environment into which a pollutant is discharged, emitted or deposited; and

(c) the current state of technical knowledge for the activity; and

(d) the likelihood and degree of success in preventing or minimising the harm or nuisance of each of the measures that might be taken; and

(e) the financial implications of taking each of those measures.

(3)  Failure to comply with subsection (1) does not itself constitute an offence or give rise to a civil right or remedy, but if a person has failed to comply with that subsection an environment protection notice may be issued to that person.

(4)  Where a person, in relation to an environmentally relevant activity, takes all measures specified, in a code of practice made and approved in accordance with section 102(2)(d) , as meeting the requirements for compliance with the general environmental duty, the person is taken to have complied with the general environmental duty in respect of the activity.

PART 3 - Environmental Management

Division 1 - Assessment of environmental impacts

24.   Assessment of permissible level 1 activities

(1)  [Section 24 Subsection (1) amended by No. 56 of 2000, s. 12, Applied:14 Jul 2000] [Section 24 Subsection (1) amended by No. 84 of 1997, s. 26, Applied:01 Jan 1998] Where an application has been made to a planning authority under the Land Use Planning and Approvals Act 1993 for a permit in respect of a use or development of land that is a permissible level 1 activity, the Director may, before a decision has been made by the planning authority in relation to that application under section 43F , 57(6) or 58 (2) of that Act , require the planning authority to refer the application to the Board for assessment under this Act, and the planning authority must comply with the requirement.

(2)  [Section 24 Subsection (2) amended by No. 56 of 2000, s. 12, Applied:14 Jul 2000] [Section 24 Subsection (2) amended by No. 84 of 1997, s. 26, Applied:01 Jan 1998] Where an application under section 57 or 58 of the Land Use Planning and Approvals Act 1993 is referred to the Board for assessment under subsection (1) , the planning authority must deal with the application in accordance with section 57 of that Act.

(3)  [Section 24 Subsection (3) amended by No. 56 of 2000, s. 12, Applied:14 Jul 2000] Section 25(2) to (8) applies to the assessment undertaken as if the assessment were the assessment of a permissible level 2 activity under that section.

(3A)  [Section 24 Subsection (3A) inserted by No. 56 of 2000, s. 12, Applied:14 Jul 2000] Despite subsection (3) , section 25(2)(b) does not apply to the assessment if the planning authority fulfilled the requirements of section 57(3) of the Land Use Planning and Approvals Act 1993 before being required to refer the application to the Board.

(4)  An activity which is assessed by the Board under subsection (3) is to be treated for the purposes of this Act as a level 2 activity.

(5)  In this section, permissible level 1 activity means a level 1 activity in respect of which a planning authority –

(a) has a discretion to refuse a permit; or

(b) is bound to grant a permit either unconditionally or subject to conditions.

25.   Assessment of permissible level 2 activities

(1)  [Section 25 Subsection (1) amended by No. 56 of 2000, s. 13, Applied:14 Jul 2000] Where an application has been made to a planning authority under the Land Use Planning and Approvals Act 1993 for a permit in respect of a use or development of land that is a permissible level 2 activity, the planning authority must–

(a) [Section 25 Subsection (1) amended by No. 84 of 1997, s. 26, Applied:01 Jan 1998] except in the case of an application made under Division 2A of Part 3 of the Land Use Planning and Approvals Act 1993 , deal with the application in accordance with section 57 of that Act; and

(b) refer the application to the Board for assessment under this Act.

(1A)  [Section 25 Subsection (1A) inserted by No. 56 of 2000, s. 13, Applied:14 Jul 2000] Subsection (1) does not apply in respect of an application for a permit for a use or development of land that is ancillary to an existing level 2 activity if the use or development will not cause serious or material environmental harm.

(1B)  [Section 25 Subsection (1B) inserted by No. 56 of 2000, s. 13, Applied:14 Jul 2000] For the purposes of this section, a use or development of land is taken to be ancillary to an existing level 2 activity if –

(a) it does not constitute conduct of works within the meaning of the definition of that level 2 activity in Schedule 2 ; or

(b) it does not constitute an intensification of the use or development of the land for the purposes of conducting the works which define that level 2 activity in Schedule 2 .

(1C)  [Section 25 Subsection (1C) inserted by No. 56 of 2000, s. 13, Applied:14 Jul 2000] Where a planning authority determines under this section that a use or development of land is ancillary to an existing level 2 activity and will not cause serious or material environmental harm, the planning authority must, if required by any person, give written reasons in support of its determination.

(2)  [Section 25 Subsection (2) amended by No. 84 of 1997, s. 26, Applied:01 Jan 1998] [Section 25 Subsection (2) substituted by No. 56 of 2000, s. 13, Applied:14 Jul 2000] Where an application, other than an application made under Division 2A of Part 3 of the Land Use Planning and Approvals Act 1993 , is referred to the Board for assessment under subsection (1)  –

(a) the Board and the planning authority, as far as is practicable, are to conduct a joint assessment process in relation to the application; and

(b) the planning authority must not advertise the application until it has received written notice from the Director that the Board has received sufficient information to satisfy the requirements of section 74(3) ; and

(c) the planning authority must provide the Board with copies of representations received under section 57 (5) of the Land Use Planning and Approvals Act 1993 ; and

(d) the period referred to in section 54(1) of the Land Use Planning and Approvals Act 1993 is extended to 42 days; and

(e) sections 57 (6) and 60 (2) of the Land Use Planning and Approvals Act 1993 do not apply.

(3)  [Section 25 Subsection (3) amended by No. 56 of 2000, s. 13, Applied:14 Jul 2000] If a planning authority does not reject an application under section 57(2) of the Land Use Planning and Approvals Act 1993 , the Board must undertake an assessment of the activity to which the application relates in accordance with the Environmental Impact Assessment Principles.

(4)  [Section 25 Subsection (4) substituted by No. 56 of 2000, s. 13, Applied:14 Jul 2000] If the Board is of the opinion that the activity will not result in serious or material environmental harm –

(a) the Board may notify the planning authority that an assessment under this Act is not required and must, if required by any person, give written reasons in support of that opinion; and

(b) section 24(2) , (3) and (4) does not apply in the case of an application that has been referred to the Board under section 24(1) ; and

(c) subsections (1)(a) , (2) and (3) do not apply in the case of an application that has been referred to the Board under subsection (1) .

(5)  [Section 25 Subsection (5) substituted by No. 56 of 2000, s. 13, Applied:14 Jul 2000] On completion of an assessment under this Act –

(a) the Board must notify the planning authority –

(i) of any condition or restriction which the Board requires to be contained in a permit granted by the planning authority under the Land Use Planning and Approvals Act 1993 in respect of the activity; and

(ii) of the reasons for requiring the condition or restriction; or

(b) the Board must –

(i) direct the planning authority to refuse to grant the permit; and

(ii) notify the planning authority of the reasons for giving the direction.

(6)  Conditions which the Board may require to be contained in a permit granted by the planning authority under the Land Use Planning and Approvals Act 1993 may include –

(a) a condition requiring the person to whom the permit is granted to apply for a further permit under the Act in the event of a proposed change in the activity which might result in environmental harm; and

(b) a condition requiring the person to whom the permit is granted to prepare, and submit to the Board for approval, an environmental management plan for the proposed activity; and

(c) a condition requiring the person to whom the permit is granted to undertake regular monitoring of the environmental effects of the activity and to report the results of that monitoring to the Board on a regular basis; and

(d) a condition providing that the activity can be undertaken only for a specified period of time, after which period a further permit under that Act may be required; and

(e) [Section 25 Subsection (6) amended by No. 56 of 2000, s. 13, Applied:14 Jul 2000] a condition requiring that, if the activity ceases, the site must be rehabilitated in accordance with the Board's requirements; and

(f) [Section 25 Subsection (6) amended by No. 56 of 2000, s. 13, Applied:14 Jul 2000] a condition requiring the person to whom the permit is granted to undertake such measures as the Board may specify to limit the environmental effects of traffic movements to and from the land to which the permit applies.

(7)  [Section 25 Subsection (7) omitted by No. 56 of 2000, s. 13, Applied:14 Jul 2000] .  .  .  .  .  .  .  .  

(8)  Where the Board has required conditions or restrictions to be contained in a permit or has directed a planning authority to refuse to grant a permit, the planning authority –

(a) must include any such condition or restriction in a permit granted by it or must not grant the permit; and

(b) [Section 25 Subsection (8) amended by No. 56 of 2000, s. 13, Applied:14 Jul 2000] must not include any other condition or restriction which is inconsistent with, or which extends the operation of, any conditions or restrictions which the Board requires to be contained in the permit; and

(c) [Section 25 Subsection (8) amended by No. 56 of 2000, s. 13, Applied:14 Jul 2000] must notify the Board of its decision to grant or refuse to grant a permit; and

(d) [Section 25 Subsection (8) amended by No. 56 of 2000, s. 13, Applied:14 Jul 2000] must, at the same time as it serves notice of its decision in accordance with section 57(7) of the Land Use Planning and Approvals Act 1993 , notify in writing the applicant and any persons who made representations under section 57(5) of the Land Use Planning and Approvals Act 1993 in respect of the application –

(i) of the conditions or restrictions that the Board requires to be contained in the permit or of the direction to the planning authority to refuse to grant the permit; and

(ii) of the reasons of the Board for requiring the conditions or restrictions to be contained in the permit or for giving the direction.

(9)  In this section, permissible level 2 activity means a level 2 activity in respect of which a planning authority –

(a) has a discretion to refuse a permit; or

(b) is bound to grant a permit either unconditionally or subject to conditions.

25A.   Assessment of applications for permits under Division 2A of Part 3 of the Land Use Planning and Approvals Act 1993

[Section 25A Inserted by No. 84 of 1997, s. 26, Applied:01 Jan 1998]

(1)  Where an application for a permit made under Division 2A of Part 3 of the Land Use Planning and Approvals Act 1993 is referred to the Board under section 24 or 25 for assessment under this Act, the Board may, by notice in writing served on the applicant for the permit within the period of 28 days from the date on which the application was referred to the Board, require the applicant to provide it with additional information for the purpose of the assessment of the application by the Board.

(2)  If the Board requires the applicant to provide it with additional information, the period referred to in subsection (3) does not run while the request for information has not been answered to the satisfaction of the Board.

(3)  The Board must complete its assessment of an application referred to in subsection (1) , and notify the planning authority of the result of that assessment, within 10 weeks of the date on which the application was referred to the Board or such longer period as the Minister may allow.

(4)  Subsections (6) and (7) of section 74 do not apply to the assessment by the Board of an application referred to in subsection (1) .

26.   Assessment of level 3 activities

[Section 26 Amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] Where an order has been made under section 18 (2) of the State Policies and Projects Act 1993 declaring a project to be a project of State significance, a direction under section 20 (1) of that Act may require the Resource Planning and Development Commission established under the Resource Planning and Development Commission Act 1997 to undertake the integrated assessment of the project of State significance in accordance with the Environmental Impact Assessment Principles.

27.   Assessment of activities which do not require a permit

(1)  Where a person proposes to undertake a level 2 activity which does not require a permit under the Land Use Planning and Approvals Act 1993 , that person must refer the proposed activity to the Board for assessment under this Act.

(1A)  [Section 27 Subsection (1A) inserted by No. 56 of 2000, s. 14, Applied:14 Jul 2000] Subsection (1) does not apply to a waste transport business in respect of the transport of controlled waste to Tasmania from another State or a Territory or from Tasmania to another State or a Territory if –

(a) that business is permitted under the laws of the State or Territory in which it has its principal place of business; and

(b) the transfer of the controlled waste is conducted in accordance with any conditions or restrictions imposed by or under the laws of that State or Territory.

(2)  Where the Director is of the opinion that it is expedient in the public interest to do so, having regard to the environmental impact of any other proposed environmentally relevant activity (other than a level 1 activity, level 2 activity or level 3 activity) for which a permit is not required, the Director may direct the person who proposes to undertake the environmentally relevant activity to refer details of the proposed activity to the Board for assessment under this Act and that person must comply with that direction.

(3)  Subject to subsection (4) , the Board must undertake, in accordance with the Environmental Impact Assessment Principles, an assessment of an activity which has been referred to the Board under this section.

(4)  If the Board is of the opinion that an activity which has been referred to the Board under this section will not result in environmental harm, the Board may notify the person who proposes to undertake the activity that an assessment under this Act is not required and must, if required by any person, give written reasons in support of that opinion.

(5)  [Section 27 Subsection (5) amended by No. 56 of 2000, s. 14, Applied:14 Jul 2000] A person must not commence an activity which must be referred to the Board under this section until the assessment by the Board has been made.

(6)  [Section 27 Subsection (6) substituted by No. 56 of 2000, s. 14, Applied:14 Jul 2000] On completion of an assessment, the Board must –

(a) cause the Director to, within 7 days after completion of the assessment –

(i) issue and serve on the person who proposes to undertake the activity which has been referred to the Board under this section an environment protection notice containing the conditions or restrictions (if any) which the Board requires to apply to the activity; and

(ii) by notice in writing served on any person who has made a representation in relation to the activity in accordance with section 74(6) , notify that person of the issue of the environment protection notice and the conditions or restrictions (if any) that the Board requires to apply to the activity; or

(b) by notice in writing served within 7 days after completion of the assessment –

(i) on the person who proposes to undertake the activity, notify that person that the activity must not proceed; and

(ii) on any person who has made a representation in relation to the activity in accordance with section 74(6) , notify that person that the activity must not proceed.

(7)  [Section 27 Subsection (7) amended by No. 56 of 2000, s. 14, Applied:14 Jul 2000] A person aggrieved by the decision of the Board may, within 14 days after the day on which the notice was served under subsection (6) , appeal to the Appeal Tribunal.

Division 2 - Environmental agreements

28.   Environmental agreements

(1)  Subject to this section, the Board, on its own initiative or at the request of another person –

(a) may enter into an environmental agreement with an operator of premises in respect of those premises; and

(b) may approve an agreement entered into between persons as an environmental agreement; and

(c) may prepare an environmental agreement to be entered into between persons.

(2)  Environmental agreements may be made in respect of individual operations, premises, areas or regions and may apply to industry or activity groups.

(3)  An environmental agreement must specify the management, investment and monitoring functions which the parties to the agreement consider necessary to ensure environmental performance beyond that required to ensure compliance with this Act.

(4)  An environmental agreement –

(a) may require reports on a regular basis to be given to the Board in relation to the environmental performance of the operation to which the agreement relates; and

(b) may contain terms providing for any matter that the Board considers will assist it in performing its functions; and

(c) may provide for any matter intended to achieve or advance the objectives specified in Schedule 1 .

(5)  A report given to the Board under subsection (4) (a) must be accompanied by a statutory declaration signed by the operator or person authorized by the operator to do so, or, if the operator is a body corporate, the chief executive officer of the body corporate or person holding a similar position to a chief executive officer, certifying the accuracy of the contents of the report.

(6)  The Board may not enter into an environmental agreement except with the prior approval of the Minister.

(7)  A person who is not a party to an environmental agreement must not hold himself or herself out as being a party to an environmental agreement.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 100 penalty units; and

(b) a natural person, a fine not exceeding 50 penalty units.

(8)  The Board must review an environmental agreement at the end of the period for which it is in force.

29.   Effect of environmental agreements

(1)  Subject to this section, an environmental agreement must not have effect to relieve a party to the agreement from any duty under this or any other Act, and any obligations imposed under such an agreement have effect in addition to and not in derogation of the requirements imposed by or under this or any other Act.

(2)  Subject to subsection (1) , an environmental agreement has effect as a contract binding on the parties to the agreement.

(3)  An environmental agreement must not require or allow anything to be done which would contravene a planning scheme, an interim order or a permit.

(4)  An environmental agreement may not –

(a) make provision for any grant or remission of any fees, rates or taxes payable to the Crown, except with the prior approval of the Treasurer; or

(b) make provision for any grant or remission of any fees, rates or taxes payable to a council, except with the prior approval of the council.

(5)  Any provision for remission of fees, rates or taxes made by an environmental agreement in accordance with this section will have effect according to its terms and notwithstanding the provisions of any other Act.

(6)  An environmental agreement remains in force for a maximum period of 5 years from the date of its commencement.

Division 3 - Environmental audits

30.   Mandatory environmental audits

(1)  If the Board considers that an environmentally relevant activity has caused, is causing, or is likely to cause, environmental harm, the Board may, by written notice served on a person, require that person –

(a) to undertake an environmental audit of the environmentally relevant activity for which that person is or was responsible; and

(b) to prepare and submit to the Board a report on the audit.

(2)  The report on an environmental audit submitted to the Board must be accompanied by a statutory declaration signed by the person who undertook the environmental audit certifying the accuracy of the content of the report.

(3)  The Board may require the report on an environmental audit to be revised in accordance with written reasons given to the person required to undertake the environmental audit.

(4)  A person must not refuse to undertake an environmental audit when required to do so by the Board.

Penalty:  Fine not exceeding 100 penalty units.

(5)  A person who is aggrieved by a requirement under subsection (1) may appeal to the Appeal Tribunal.

31.   Protection for information produced in voluntary environmental audits

(1)  A person may apply to the Board to obtain the protection of this section in respect of a proposed voluntary environmental audit or an audit which has been or is being undertaken at the commencement of this Act.

(2)  The application may be made by lodging with the Board a detailed outline of action taken, or proposed to be taken, by the person for the evaluation of the person's performance in endeavouring to achieve compliance with this or any other Act, including evaluation of the management practices, production processes and technical systems and equipment adopted or used by the person.

(3)  On application by a person under this section, the Board may issue to the person a determination conferring the protection of this section in respect of a report of the results of the audit programme.

(4)  A determination may be subject to such conditions as the Board thinks fit, which may include all or any of the following:

(a) conditions limiting the kinds of information that may be included in the report;

(b) conditions requiring that the report be compiled and kept in a specified manner and form;

(c) conditions requiring the person to lodge with the Board evidence (supported by statutory declaration) as to the time of completion of the audit programme and as to the compilation and keeping of the report;

(d) a condition requiring the person to provide to the Board a copy of the report.

(5)  Despite any other provisions of this Act but subject to this section and compliance with the conditions of the determination, a report defined in a determination of the Board issued to a person under this section –

(a) is not admissible in evidence against the person in any proceedings under this Act or any other proceedings for the enforcement of this Act; and

(b) may not be seized or obtained without the person's consent by the Board, the Director, an authorized officer or any other person for any purpose connected with the administration or enforcement of this Act.

(6)  A person to whom a determination has been issued under this section in respect of a report of the results of an audit programme must not claim the protection of this section based on that determination in respect of any information knowing that the information may not, in accordance with the conditions of the determination, be included in the report of the results of the audit programme.

Penalty:  Fine not exceeding 50 penalty units.

(7)  For the purposes of this section, a report includes any material used in the preparation of that report.

Division 4 - Notification obligations

32.   Notification of incidents

[Section 32 Substituted by No. 56 of 2000, s. 15, Applied:14 Jul 2000]

(1)  A person responsible for an activity that is not a level 2 activity or a level 3 activity must notify the relevant council, as soon as reasonably practicable but not later than 24 hours, after becoming aware of the release of a pollutant occurring as the result of any incident in relation to that activity, including an emergency, accident or malfunction, if this release causes or may cause an environmental nuisance.

(2)  A person responsible for an activity that is a level 2 activity or a level 3 activity must notify the Director, as soon as reasonably practicable but not later than 24 hours, after becoming aware of the release of a pollutant occurring as a result of any incident in relation to that activity, including an emergency, accident or malfunction, if this release causes or may cause an environmental nuisance.

(3)  A person responsible for an environmentally relevant activity must notify the Director, as soon as reasonably practicable but not later than 24 hours, after becoming aware of the release of a pollutant occurring as a result of any incident in relation to that activity, including an emergency, accident or malfunction, if this release causes or may cause serious or material environmental harm.

(4)  Any notification referred to in subsection (1) , (2) or (3) must include details of the incident, its nature, the circumstances in which it occurred and any action that has been taken to deal with it.

(5)  A person who contravenes subsection (1) , (2) or (3) is guilty of an offence.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 1 200 penalty units; or

(b) a natural person, a fine not exceeding 600 penalty units.

(6)  For the purposes of subsections (1) , (2) and (3) –

(a) a person is not required to notify the council or the Director of such an incident if the person has reasonable grounds for believing that the incident has already come to the notice of the council or Director or any officer engaged in the administration or enforcement of this Act; but

(b) a person is required to notify the council or the Director of such an incident despite the fact that to do so might incriminate the person or make the person liable to a penalty.

(7)  Any notification given by a person in compliance with this section is not admissible in evidence against the person in proceedings for an offence or for the imposition of a penalty (other than proceedings in respect of the making of a false or misleading statement).

33.   

[Section 33 Repealed by No. 56 of 2000, s. 16, Applied:14 Jul 2000] .  .  .  .  .  .  .  .  

Division 5 - Emergency authorizations

34.   Emergency authorizations

(1)  The Director or an authorized officer may issue an authorization in writing to a person authorizing an act or omission that might otherwise constitute a contravention of this Act if the Director or authorized officer is satisfied –

(a) that circumstances of urgency exist; and

(b) that authorization of the act or omission is justified by the need to protect life, the environment or property.

(2)  An authorization under this section may be issued subject to such conditions as the Director or authorized officer considers appropriate and specifies in the authorization.

(3)  A person does not incur criminal liability in respect of an act or omission authorized under this section.

Division 6 - Financial assurances

35.   Financial assurance to secure compliance with Act

(1)  [Section 35 Subsection (1) amended by No. 56 of 2000, s. 17, Applied:14 Jul 2000] Subject to this section, the Board may by notice in writing served on the person responsible for an environmentally relevant activity require that person to lodge with the Board a financial assurance in the form of a bond (supported by a guarantee, insurance policy or other security approved by the Board), or a specified pecuniary sum, the discharge or repayment of which is conditional on that person–

(a) not committing any contravention of this Act of a specified kind during a specified period; or

(b) taking specified action within a specified period to achieve compliance with this Act.

(2)  The Board may not require the lodgment of a bond or pecuniary sum unless satisfied –

(a) that imposition of the conditions is justified in view of the degree of risk of environmental harm associated with the activities that may be undertaken by the person or the likelihood of action being required to make good resulting environmental damage; or

(b) that –

(i) the person has on one or more occasions contravened this Act in relation to the activity; and

(ii) the requiring of the assurance is justified in view of the nature of the contravention or the nature, number or frequency of the contraventions; or

(c) as to any other matters prescribed by regulation.

(3)  The Board may not require the lodgment of a bond or a pecuniary sum of an amount greater than the amount that, in the opinion of the Board, represents the total of the likely costs, expenses, loss and damage that might be incurred or suffered by persons as a result of failure by the person to satisfy the conditions of discharge or repayment of the bond or pecuniary sum.

(4)  A pecuniary sum lodged with the Board in accordance with conditions under subsection (1) is to be paid into the Fund, and the amount of the pecuniary sum that has not been repaid or forfeited to the Fund is, on satisfaction of the conditions of repayment, to be repaid to the person together with an amount representing interest calculated in accordance with the regulations.

(5)  [Section 35 Subsection (5) amended by No. 56 of 2000, s. 17, Applied:14 Jul 2000] If the Board requires a person to lodge with the Board a financial assurance under subsection (1) , that person may appeal to the Appeal Tribunal against the requirement.

36.   Claim on financial assurance

(1)  Where a person fails to satisfy the conditions of discharge or repayment of a bond or pecuniary sum lodged with the Board, the Board may do all or any of the following:

(a) determine that the whole or part of the amount of the bond or pecuniary sum is forfeited to the Fund;

(b) apply from the Fund any money so forfeited in payment for or towards the costs, expenses, loss or damage incurred or suffered by the Crown, a public authority or other person as a result of the failure by the person;

(c) in the case of a pecuniary sum, on the expiry or termination of the authorization and when satisfied that there is no reasonable likelihood of any or further valid claims in respect of costs, expenses, loss or damage incurred or suffered as a result of the failure of the person, repay any amount of the pecuniary sum that has not been repaid or forfeited to the Fund.

(2)  If a person who fails to satisfy the conditions of discharge or repayment of a bond or pecuniary sum lodged with the Board is aggrieved by any action taken by the Board under subsection (1) , that person may appeal to the Appeal Tribunal against that action.

Division 7 - Environmental improvement programmes

37.   Environmental improvement programme

[Section 37 Amended by No. 56 of 2000, s. 18, Applied:14 Jul 2000] An environmental improvement programme is a specific programme the intent of which, when approved, is to achieve compliance with this Act for a particular activity by–

(a) reducing environmental harm; or

(b) detailing the transition to a new environmental standard.

38.   Content of environmental improvement programme

(1)  An environmental improvement programme is to –

(a) specify the objectives to be achieved and maintained under the programme for an activity; and

(b) specify a timetable to achieve the objectives, taking into account –

(i) the best practice environmental management for the activity; and

(ii) the risk of environmental harm being caused by the activity; and

(c) make provision for monitoring compliance with the programme.

(2)  An environmental improvement programme may make provision for review of the programme during the period over which the programme is to be carried out.

39.   When environmental improvement programme required

(1)  The Board may require a person to prepare and submit to it a draft environmental improvement programme if the Board is satisfied that –

(a) an activity carried out by the person, or that activity in combination with other factors, is causing, or may cause, serious or material environmental harm; or

(b) [Section 39 Subsection (1) amended by No. 21 of 1997, s. 18, Applied:01 Aug 1997] [Section 39 Subsection (1) amended by No. 56 of 2000, s. 19, Applied:14 Jul 2000] it is not practicable for a person to comply with a State Policy, a provision of this Act, the regulations or an environment protection policy.

(2)  A requirement under subsection (1) must be made by written notice given to the person.

(3)  The notice must specify –

(a) the grounds on which the requirement is made; and

(b) the matters to be addressed by the programme; and

(c) the period (not longer than 3 years) over which the programme is to be carried out; and

(d) the day (not less than a reasonable period after the notice is given) by which the programme is to be prepared and given to the Board.

40.   Approval of environmental improvement programmes

(1)  On receiving a draft environmental improvement programme, the Board must advertise the receipt of the programme by notice published in a daily newspaper circulating in the relevant part of the State.

(2)  A notice published under subsection (1) is, in addition to any other matters required to be contained in it, to name a place where a copy of the draft environmental improvement programme, and of all plans and other documents relating to the programme, will be open to inspection by the public at all reasonable hours during the period for which representations may be made.

(3)  Any person may make representations to the Board relating to the draft environmental improvement programme during the period of 30 days commencing on the date on which notice of the programme is given under subsection (2) or such further period not exceeding 14 days as the Board may allow.

(4)  The Board must, after taking into consideration any representations made in relation to the draft environmental improvement programme –

(a) approve the programme with or without amendment; or

(b) refuse to approve the programme as submitted.

(5)  Where the Board approves or refuses to approve a draft environmental improvement programme, the Board must, within 7 days, serve notice of its decision on the person who prepared the draft environmental improvement programme and all persons who made representations relating to the programme.

41.   Appeals against environmental improvement programmes

(1)  Where the Board approves an environmental improvement programme in respect of an activity, the person responsible for the activity may appeal to the Appeal Tribunal against the programme or against any requirement contained in the programme.

(2)  Where the Board refuses to approve an environmental improvement programme in respect of an activity, the person responsible for the activity may appeal to the Appeal Tribunal against the refusal.

(3)  A person who, pursuant to section 40 , has made a representation to the Board in respect of an environmental improvement programme may appeal to the Appeal Tribunal against the approval of the programme or against any requirement contained in the programme.

41A.   Minor amendment of environmental improvement programmes

[Section 41A Inserted by No. 56 of 2000, s. 20, Applied:14 Jul 2000]

(1)  On the request of the person who prepared an environmental improvement programme that has been approved under section 40(4) , the Board may amend the requirements of that programme if the amendment –

(a) does not prevent the achievement of the outcomes of the programme; and

(b) does not extend by more than 3 months the time by which any requirement of that programme must be achieved; and

(c) does not extend the total period during which the programme is to be carried out so that the total period exceeds 3 years.

(2)  If an amendment is made under subsection (1) , the Board must –

(a) within 7 days after making the amendment, notify the person who requested the amendment and each person who made a representation under section 40(3) of the amendment; and

(b) if required by any person to do so, provide written reasons in support of the amendment.

(3)  If the Board refuses a request to amend an environmental improvement programme, the Board must –

(a) within 7 days after making the decision to refuse to amend, notify the person who requested the amendment of that decision; and

(b) if required by any person to do so, provide written reasons for that decision.

42.   Contravention of requirements contained in environmental improvement programmes

(1)  [Section 42 Subsection (1) substituted by No. 56 of 2000, s. 21, Applied:14 Jul 2000] A person does not incur liability for prosecution in respect of an act or omission –

(a) in respect of which a person is required to prepare and submit a draft environmental improvement programme under section 39 if that person complies with that requirement; or

(b) that is authorised by an environmental improvement programme during the period over which the programme is to be carried out.

(2)  A person who contravenes a requirement contained in an environmental improvement programme is guilty of an offence.

Penalty:  Fine not exceeding 2 500 penalty units or imprisonment for a term not exceeding 4 years, or both.

42A.   Completion of environmental improvement programmes

[Section 42A Inserted by No. 56 of 2000, s. 22, Applied:14 Jul 2000] If the Board considers that an environmental improvement programme in respect of an activity has been satisfactorily completed, the Board must, by notice in writing served on the person responsible for the activity and any person who made a representation under section 40(3) , notify those persons of the satisfactory completion of the programme.

PART 4 - Enforcement Provisions

Division 1 - Information to be supplied

43.   Power to require information

(1)  The Director may, by notice in writing served on a person, require that person to provide the Director, within the period specified in the notice, with such information as the Director reasonably considers necessary in the interests of the environment.

(2)  A person who is aggrieved by a requirement under subsection (1) may appeal to the Appeal Tribunal.

(3)  If a person served with a notice under this section contravenes a provision of the notice, that person is guilty of an offence.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 250 penalty units; and

(b) a natural person, a fine not exceeding 100 penalty units.

Division 2 - Environment protection notices

44.   Environment protection notices

(1)  Where the Director is satisfied that in relation to an environmentally relevant activity –

(a) environmental harm is being or is likely to be caused; or

(b) environmental harm has occurred and remediation of that harm is required; or

(c) [Section 44 Subsection (1) amended by No. 56 of 2000, s. 23, Applied:14 Jul 2000] it is necessary to do so in order to give effect to a State Policy or an environment protection policy; or

(d) [Section 44 Subsection (1) amended by No. 56 of 2000, s. 23, Applied:14 Jul 2000] it is desirable to vary the conditions of a permit; or

(e) [Section 44 Subsection (1) amended by No. 56 of 2000, s. 23, Applied:14 Jul 2000] it is necessary to secure compliance with the general environmental duty –

the Director may cause an environment protection notice to be issued and served on the person who is or was responsible for the environmentally relevant activity.

(2)  [Section 44 Subsection (2) amended by No. 56 of 2000, s. 23, Applied:14 Jul 2000] Where a council officer is satisfied that in relation to an activity other than a level 2 or level 3 activity –

(a) environmental harm is being or is likely to be caused; or

(b) environmental harm has occurred and remediation of that harm is required; or

(c) [Section 44 Subsection (2) amended by No. 56 of 2000, s. 23, Applied:14 Jul 2000] it is necessary to do so in order to give effect to a State Policy or an environment protection policy; or

(d) [Section 44 Subsection (2) amended by No. 56 of 2000, s. 23, Applied:14 Jul 2000] it is desirable to vary the conditions of a permit; or

(e) [Section 44 Subsection (2) amended by No. 56 of 2000, s. 23, Applied:14 Jul 2000] it is necessary to secure compliance with the general environmental duty –

the council officer may issue and serve an environment protection notice on the person who is or was responsible for the activity.

(3)  An environment protection notice –

(a) is to specify the person to whom it is issued (whether by name or a description sufficient to identify the person); and

(b) is to specify the grounds on which it is issued; and

(c) may require the person on whom it is served to take the measures specified in the notice to prevent, control, reduce or remediate environmental harm within a period specified in the notice; and

(d) may impose any requirement reasonably required for the purpose for which the notice is issued, including one or more of the following requirements:

(i) that the person discontinue, or not commence, a specified activity indefinitely or for a specified period;

(ii) that the person not carry on a specified activity except at specified times or subject to specified conditions;

(iii) that the person take specified action within a specified period; and

(e) [Section 44 Subsection (3) amended by No. 56 of 2000, s. 23, Applied:14 Jul 2000] .  .  .  .  .  .  .  .  

(f) is to contain a statement that the person may, within 14 days from the date on which the notice is served, appeal to the Appeal Tribunal against the notice or against any requirement contained in the notice; and

(g) takes effect on the day on which it is served.

(3A)  [Section 44 Subsection (3A) inserted by No. 56 of 2000, s. 23, Applied:14 Jul 2000] The Director or, in the case of a notice issued under section 44(2) , the council officer may require the person on whom an environment protection notice is served to pay reasonable costs and expenses for the issuing of the notice and for ensuring that it is complied with.

(4)  Where an environment protection notice is issued by a council officer, the council must, as soon as practicable, advise the Director in writing of that fact and of any amendment or revocation of the notice.

(5)  The Director or, in the case of a notice issued by a council officer, a council officer may, by notice in writing served on a person served with an environment protection notice –

(a) revoke the notice; or

(b) amend the notice by extending the period within which a requirement is to be complied with; or

(c) amend or revoke any requirement or condition of the notice.

(6)  [Section 44 Subsection (6) substituted by No. 56 of 2000, s. 23, Applied:14 Jul 2000] A person on whom an environment protection notice has been served or an owner of land to whom an environment protection notice has been forwarded under section 46 (1) (a) may appeal to the Appeal Tribunal against the notice or against any requirement contained in the notice.

(6A)  [Section 44 Subsection (6A) inserted by No. 56 of 2000, s. 23, Applied:14 Jul 2000] A person who has been served with a notice amending or revoking any requirement or condition of an environment protection notice under subsection (5)(c) may appeal to the Appeal Tribunal against the amendment or revocation.

(7)  An environment protection notice has effect even if it is inconsistent with a permit in force under the Land Use Planning and Approvals Act 1993 and the permit has no effect to the extent of the inconsistency.

(8)  [Section 44 Subsection (8) inserted by No. 56 of 2000, s. 23, Applied:14 Jul 2000] If the conditions of a permit are varied by the issuing of an environment protection notice under subsection (1)(d) or subsection (2)(d) , the Director or, in the case of an environment protection notice issued by a council officer, the council officer must by notice in writing served on any person who made a representation under section 57(5) of the Land Use Planning and Approvals Act 1993  –

(a) notify the person of the variation in the conditions of the permit; and

(b) provide written reasons to that person for the decision to vary the conditions of the permit.

45.   Duties arising under environment protection notice

(1)  A person who is or was responsible for an environmentally relevant activity who, having been served with an environment protection notice, ceases to be responsible for the activity in respect of which the notice was served must, within 30 days after that cessation –

(a) notify the Director or, in the case of an environment protection notice served by a council officer, the council in writing of that fact; and

(b) [Section 45 Subsection (1) amended by No. 56 of 2000, s. 24, Applied:14 Jul 2000] provide the Director or the council with full particulars in writing of any person succeeding him or her as the person responsible.

(c) [Section 45 Subsection (1) amended by No. 56 of 2000, s. 24, Applied:14 Jul 2000] .  .  .  .  .  .  .  .  

(2)  A person who contravenes subsection (1) is guilty of an offence.

Penalty:  Fine not exceeding 10 penalty units.

(3)  If a person bound by an environment protection notice contravenes a requirement of the notice, that person is guilty of an offence and is liable on summary conviction to –

(a) if the notice was issued for the purpose of securing compliance with a requirement imposed by or under this Act and a penalty is fixed by this Act for contravention of that requirement, that penalty; or

(b) in any other case, a penalty not exceeding 1 000 penalty units in the case of a body corporate or 500 penalty units in any other case.

(4)  Where a requirement of an environment protection notice is contravened, each person served with the notice is, for the purposes of this section, taken to have contravened that requirement.

46.   Registration of environment protection notices

(1)  Where an environment protection notice has been served on a person and the Director is of the opinion that the notice affects a title to land, the Director must, as soon as practicable after the environment protection notice is served –

(a) cause a copy of the notice to be forwarded to the owner of the land; and

(b) cause a copy of the notice, together with particulars of title, to be lodged with the Recorder of Titles.

(2)  Where the land to which the notice relates is not under the Land Titles Act 1980 , the Recorder of Titles must, as soon as practicable after lodgment of the notice and particulars of title –

(a) register the notice in the Registry of Deeds; and

(b) bring the land under that Act as if an application had been made in relation to that land under section 11 of that Act .

(3)  The Recorder of Titles is not bound for the purposes of subsection (1) (b) to investigate the title to any land.

(4)  The Recorder of Titles must register the environment protection notice as if it were a dealing, within the meaning of the Land Titles Act 1980 , lodged in accordance with that Act.

(5)  Where an environment protection notice has been registered by the Recorder of Titles –

(a) it remains in force notwithstanding any subsequent disposition of the land to which it relates or any other dealing in the land; and

(b) it operates as the basis for a charge on the land, as provided by this Division, securing payment to the Director of costs and expenses incurred in the event of a contravention of the notice.

(6)  Where –

(a) an environment protection notice registered by the Recorder of Titles is amended or revoked under section 44 ; or

(b) the notice has been complied with in full; or

(c) if the Director has taken action under this Division to carry out the requirements of the notice, payment has been made to the Director of the amount recoverable under this Division in respect of that action –

the Director must deliver to the Recorder of Titles a certificate, in a form approved by the Recorder, certifying that the relevant event took place on the date specified in that certificate.

(7)  On receiving a certificate delivered under subsection (6) , the Recorder of Titles must amend or cancel the registration of the relevant environment protection notice and endorse the register book accordingly.

(8)  Nothing in section 40 of the Land Titles Act 1980 is to be construed as affecting the validity of any environment protection notice issued under this Division or as prejudicing or affecting the operation of any such notice.

47.   Action on non-compliance with environment protection notice

(1)  [Section 47 Subsection (1) substituted by No. 56 of 2000, s. 25, Applied:14 Jul 2000] The Director or, in the case of an environment protection notice served by a council officer, the council may take any action required by an environment protection notice if the requirements of the notice are not complied with within –

(a) the period specified in the notice under section 44(3)(d)(iii) ; or

(b) if a period is not so specified in the notice, a reasonable time.

(1A)  [Section 47 Subsection (1A) inserted by No. 56 of 2000, s. 25, Applied:14 Jul 2000] In determining what is a reasonable time for the purposes of subsection (1)(b) , regard must be had to –

(a) the seriousness of the environmental harm that has occurred or is likely to occur as a result of the act or omission which is the subject of the environment protection notice; and

(b) the type of measures the environment protection notice requires the person on whom it is served to undertake to prevent, control, reduce or remediate that environmental harm and the degree of difficulty that person is likely to have in undertaking and completing those measures.

(2)  Any action to be taken under subsection (1) may be taken –

(a) on the Director's behalf, by authorized officers; and

(b) on the council's behalf, by council officers.

(3)  The reasonable costs and expenses incurred by the Director or a council in taking action under this section may be recovered by the Director or the council as a debt from the person who failed to comply with the requirements of the environment protection notice.

(4)  Where an amount is recoverable from a person under this section, the Director or the council may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person.

(5)  If the amount is not paid by the person within the period fixed, the person is liable to pay interest charged at the prescribed rate on the amount unpaid.

(6)  The amount recoverable together with any interest charge payable is, until paid, a charge in favour of the Director or the council on any land owned by the person in relation to which the environment protection notice is registered under this Division.

(7)  Subject to section 119 of the Local Government Act 1993 , a charge imposed on land by this section has priority over –

(a) any prior charge on the land (whether or not registered) that operates in favour of a person who is an associate of the owner of the land; and

(b) any other charge on the land other than a charge registered before registration of the environment protection notice in relation to the land.

(8)  For the purposes of this Act, a person is an associate of another if –

(a) they are partners; or

(b) one is a spouse, parent or child of another; or

(c) they are both trustees or beneficiaries of the same trust, or one is a trustee and the other is a beneficiary of the same trust; or

(d) one is a body corporate or other entity (whether inside or outside Australia) and the other is a director or member of the governing body of the body corporate or other entity; or

(e) one is a body corporate or other entity (whether inside or outside Australia) and the other is a person who has a legal or equitable interest in 5% or more of the share capital of the body corporate or other entity; or

(f) they are related bodies corporate; or

(g) a relationship of a prescribed kind exists between them; or

(h) a chain of relationships can be traced between them under any one or more of the above paragraphs.

(9)  For the purposes of subsection (8) , a beneficiary of a trust includes an object of a discretionary trust.

Division 3 - Civil enforcement

48.   Civil enforcement proceedings

(1)  Where –

(a) a person has engaged, is engaging or is proposing to engage in conduct in contravention of this Act; or

(b) a person has refused or failed, is refusing or failing or is proposing to refuse or fail to take any action required by this Act; or

(c) a person has caused environmental harm by contravention of this Act, any other Act or the repealed Act –

the Director, a council or a person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter may apply to the Appeal Tribunal for an order under this section.

(2)  The application may be made ex parte and, if the Appeal Tribunal is satisfied that there are sufficient grounds, it must issue a summons requiring the respondent to appear before the Appeal Tribunal to show cause why an order should not be made under this section.

(3)  If after hearing –

(a) the applicant and the respondent; and

(b) any other person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings –

the Appeal Tribunal may, if it considers it appropriate to do so, by order do any of the things specified in subsection (5) .

(4)  If the respondent fails to appear in response to the summons or, having appeared, does not avail himself or herself of an opportunity to be heard the Appeal Tribunal may, if it considers it appropriate to do so, by order do any of the things specified in subsection (5) .

(5)  The Appeal Tribunal may do all or any of the following:

(a) require the respondent to refrain, either temporarily or permanently, from the act or course of action that constitutes the contravention of, the potential contravention of, or the failure to comply with, this Act;

(b) preclude, for a period specified by the Appeal Tribunal, the respondent from carrying out any use or development in relation to the land in respect of which the contravention relates;

(c) require the respondent to make good the contravention or default in a manner, and within a period, specified by the Appeal Tribunal;

(d) require compliance with any environmental agreement, environmental improvement programme or environment protection notice;

(e) require the payment of reasonable costs and expenses incurred by the Board or any other public authority as a result of taking action to prevent or mitigate environmental harm caused by a contravention of this, or any other, Act or to make good resulting environmental damage;

(f) require the payment of compensation for the injury, loss or damage, or for payment of the reasonable costs and expenses incurred to a person who has suffered injury or loss or damage, to property as a result of a contravention of this, or any other, Act including costs and expenses incurred in taking action to prevent or mitigate such injury, loss or damage;

(g) require payment (for the credit of the Environment Protection Fund) of an amount in the nature of exemplary damages determined by the Appeal Tribunal.

(6)  If in proceedings under this section the Appeal Tribunal is satisfied that, in order to preserve the rights or interests of parties to the proceedings or for any other reason, it is desirable to make a temporary order under this section, the Appeal Tribunal may at any time during those proceedings make such an order.

(7)  A temporary order –

(a) may be made on an ex parte application before a summons has been issued under subsection (2) ; and

(b) may be made subject to such conditions as the Appeal Tribunal thinks fit; and

(c) is not to operate after the proceedings in which it is made are finally determined.

(8)  A person must not contravene an order or a temporary order under this section.

Penalty:  Fine not exceeding 500 penalty units.

(9)  Where the Appeal Tribunal makes an order under subsection (5) (c) and the respondent fails to comply with the order within the period specified by the Appeal Tribunal, the Director may, by leave of the Appeal Tribunal, cause any work contemplated by the order to be carried out, and may recover the costs of that work, as a debt, from the respondent.

(10)  The Appeal Tribunal may, if it thinks fit, adjourn proceedings under this section in order to permit the respondent to make an application for a permit that should have been but was not made, or to remedy any other default.

(11)  The Appeal Tribunal may, on an application under this section, exercise the powers conferred on it by section 62 (1) of the Land Use Planning and Approvals Act 1993 in relation to any use or development of land as if the application were a hearing of an appeal.

(12)  For the purposes of the Resource Management and Planning Appeal Tribunal Act 1993 , an application under this section is deemed to be an appeal.

(13)  Proceedings under this section may be commenced at any time within 3 years after the date of the relevant event referred to in subsection (1) .

49.   Appeal in respect of decision of Appeal Tribunal under section 48

(1)  Subject to the Rules of the Supreme Court, an appeal lies to the Supreme Court against –

(a) an order of the Appeal Tribunal made in the exercise of the jurisdiction conferred by section 48 ; or

(b) a decision by the Appeal Tribunal not to make an order under that section.

(2)  An appeal under this section must be instituted within 30 days of the date of the decision or order subject to appeal or such longer period as may be allowed by the Supreme Court.

Division 4 - General offences

50.   Offences of causing serious environmental harm

(1)  A person who causes serious environmental harm by polluting the environment intentionally or recklessly and with the knowledge that serious environmental harm will or might result is guilty of an offence.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 10 000 penalty units; or

(b) a natural person, a fine not exceeding 2 500 penalty units or imprisonment for a term not exceeding 4 years, or both.

(2)  A person who causes serious environmental harm by polluting the environment is guilty of an offence.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 2 500 penalty units; or

(b) a natural person, a fine not exceeding 1 200 penalty units.

(3)  If in proceedings for an offence against subsection (1) the court is not satisfied that the defendant is guilty of the offence charged but is satisfied that the defendant is guilty of an offence against subsection (2) , the court may find the defendant guilty of the latter offence.

51.   Offences of causing material environmental harm

(1)  A person who causes material environmental harm by polluting the environment intentionally or recklessly and with the knowledge that material environmental harm will or might result is guilty of an offence.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 2 500 penalty units; or

(b) a natural person, a fine not exceeding 1 200 penalty units or imprisonment for a term not exceeding 2 years, or both.

(2)  A person who causes material environmental harm by polluting the environment is guilty of an offence.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 1 200 penalty units; or

(b) a natural person, a fine not exceeding 600 penalty units.

(3)  If in proceedings for an offence against subsection (1) the court is not satisfied that the defendant is guilty of the offence charged but is satisfied that the defendant is guilty of an offence against subsection (2) , the court may find the defendant guilty of the latter offence.

51A.   Offence to deposit pollutant where environmental harm may be caused

[Section 51A Inserted by No. 56 of 2000, s. 26, Applied:14 Jul 2000]

(1)  A person must not deposit a pollutant, or cause or allow a pollutant to be deposited, in a place or position where it could reasonably be expected to cause serious environmental harm.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 2500 penalty units; or

(b) a natural person, a fine not exceeding 1200 penalty units.

(2)  A person must not deposit a pollutant, or cause or allow a pollutant to be deposited, in a place or position where it could reasonably be expected to cause material environmental harm.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 1200 penalty units; or

(b) a natural person, a fine not exceeding 600 penalty units.

52.   Treatment of offences

(1)  [Section 52 Subsection (1) amended by No. 56 of 2000, s. 27, Applied:14 Jul 2000] An offence against section 50 , 51 or 51A is an indictable offence.

(2)  Notwithstanding that an offence referred to in subsection (1) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and prosecutor consent.

(3)  If in proceedings for an offence against this Part of causing serious environmental harm the court is not satisfied that the defendant is guilty of the offence charged but is satisfied that the defendant is guilty of an offence against this Part of causing material environmental harm or of causing an environmental nuisance, the court may find the defendant guilty of either of the latter offences.

(4)  If in proceedings for an offence against this Part of causing material environmental harm the court is not satisfied that the defendant is guilty of the offence charged but is satisfied that the defendant is guilty of an offence against this Part of causing an environmental nuisance, the court may find the defendant guilty of the latter offence.

(5)  [Section 52 Subsection (5) inserted by No. 56 of 2000, s. 27, Applied:14 Jul 2000] If in proceedings for an offence against section 51A(1) the court is not satisfied that the defendant is guilty of the offence charged but is satisfied that the defendant is guilty of an offence against section 51A(2) or 53 , the court may find the defendant guilty of either of the latter offences.

(6)  [Section 52 Subsection (6) inserted by No. 56 of 2000, s. 27, Applied:14 Jul 2000] If in proceedings for an offence against section 51A(2) the court is not satisfied that the defendant is guilty of the offence charged but is satisfied that the defendant is guilty of an offence against section 53 , the court may find the defendant guilty of the latter offence.

53.   Offence of causing environmental nuisance

(1)  A person who wilfully and unlawfully causes an environmental nuisance is guilty of an offence.

Penalty:  Fine not exceeding 300 penalty units.

(2)  A person who unlawfully causes an environmental nuisance is guilty of an offence.

Penalty:  Fine not exceeding 100 penalty units.

(3)  [Section 53 Subsection (3) substituted by No. 56 of 2000, s. 28, Applied:14 Jul 2000] Where an offence under subsection (1) or (2) is constituted by the emission of noise that is not an emission specified in an environment protection policy to be an environmental nuisance, the emission is to be taken to unreasonably interfere with a person's enjoyment of the environment if it is unreasonable having regard to –

(a) its volume, intensity or duration; and

(b) the time, place and other circumstances in which it is emitted; and

(c) in the case of noise emitted from residential premises, whether it can be heard in a habitable room in any other residential premises.

(4)  If in proceedings for an offence against subsection (1) the court is not satisfied that the defendant is guilty of the offence charged but is satisfied that the defendant is guilty of an offence against subsection (2) , the court may find the defendant guilty of the latter offence.

(5)  Subsections (1) and (2) do not apply to conduct that is an offence against section 50 or 51 .

(6)  In this section –

habitable room means any room other than a storage area, bathroom, laundry, toilet or pantry;

residential premises means any building or part of a building lawfully used as, or for the purposes of, a private residence or residential flat.

54.   Continuing offences

(1)  Where an offence against this Act is alleged to have been committed by a person and the act or omission which constituted the alleged offence continues after the person has been served with notice of the alleged offence and the person is subsequently convicted of the offence, the person is liable, in addition to the penalty otherwise applicable to the offence, to a penalty for each day during which the act or omission continues after the service of the notice of not more than an amount equal to one-fifth of the maximum penalty prescribed for that offence.

(2)  Where an offence against this Act is committed by a person and the act or omission which constituted the offence continues after the person is convicted of the offence, the person is guilty of a further offence against that provision and is liable, in addition to the penalty otherwise applicable to the further offence, to a penalty for each day during which the act or omission continues after that conviction of not more than an amount equal to one-fifth of the maximum penalty prescribed for that offence.

(3)  For the purposes of this section, an obligation to do something is to be regarded as continuing until the act is done notwithstanding that any period within which, or time before which, the act is required to be done has expired or passed.

55.   General criminal defence

(1)  [Section 55 Subsection (1) substituted by No. 56 of 2000, s. 29, Applied:14 Jul 2000] It is a defence to a charge of an offence against this Act, including –

(a) an offence by a body corporate or a natural person where conduct or a state of mind is imputed to the body corporate or person under this Part; and

(b) an offence by an officer of a body corporate under this Part –

if it is proved that –

(c) the alleged offence did not result from any failure on the defendant's part to take all reasonable and practicable measures to prevent the commission of the offence or offences of the same or a similar nature; or

(d) the act or omission alleged to constitute the offence was justified by the need to protect life, the environment or property in a situation of emergency and that the defendant was not guilty of any failure to take all reasonable and practicable measures to prevent or deal with such an emergency.

(2)  [Section 55 Subsection (2) omitted by No. 56 of 2000, s. 29, Applied:14 Jul 2000] .  .  .  .  .  .  .  .  

(3)  [Section 55 Subsection (3) amended by No. 56 of 2000, s. 29, Applied:14 Jul 2000] Where a body corporate or other employer seeks to establish either of the defences provided by this section by proving the establishment of proper workplace systems and procedures designed to prevent a contravention of this Act, that proof must be accompanied by proof–

(a) that proper systems and procedures were also in place whereby any such contravention or risk of such contravention of this Act that came to the knowledge of a person at any level in the workforce was required to be reported promptly to the governing body of the body corporate or to the employer, or to a person or group with the right to report to the governing body or to the employer; and

(b) that the governing body of the body corporate or the employer actively and effectively promoted and enforced compliance with this Act and with all such systems and procedures within all relevant areas of the workforce.

(4)  [Section 55 Subsection (4) amended by No. 56 of 2000, s. 29, Applied:14 Jul 2000] A person who would, but for either of the defences provided by this section, be guilty of an offence of contravening a provision of this Act is, despite that defence, to be taken to have contravened that provision for the purposes of–

(a) any civil proceedings under this Act in respect of the contravention; and

(b) the issuing or enforcement of any environment protection notice under this Act in respect of the contravention; and

(c) the making by a court of an order under section 63 in proceedings for an offence in respect of the contravention.

55A.   General environmental duty defence

[Section 55A Inserted by No. 56 of 2000, s. 30, Applied:14 Jul 2000]

(1)  In any proceedings under this Act, if it is alleged that a person has contravened section 50 , 51 , 51A or 53 , it is a defence if –

(a) maximum levels for the particular pollutant have been set in a State Policy or an environment protection policy or as a condition in a permit, and it is shown that those levels were not breached; or

(b) a State Policy, environment protection policy or condition in a permit provides that compliance with specified provisions of a State Policy or environment protection policy or specified conditions in a permit will satisfy the general environmental duty and it is shown that those provisions or conditions were complied with; or

(c) it is shown that all measures specified in a code of practice made and approved in accordance with the regulations as meeting the requirements for compliance with the general environmental duty have been taken.

(2)  The defences applied under subsection (1) are in addition to, and do not derogate from, the general defence under section 55 .

56.   Notice of defences

(1)  A person who intends to rely on a defence under this Act may only do so if the person gives notice in writing of that intention to the Director within 28 days after the summons to answer to the charge is served on the person.

(2)  The court may, on the application of a person who intends to rely on a defence under this Act, waive the period within which notice of that intention is to be given to the Director.

57.   Proof of intention, &c., for offences

Subject to any express provision in this Act to the contrary, it is not necessary to prove any intention or other state of mind in order to establish the commission of an offence against this Act.

58.   Imputation in proceedings of conduct or state of mind of officer, employee, &c.

(1)  For the purposes of proceedings for an offence against this Act –

(a) the conduct and state of mind of an officer, employee or agent of a body corporate acting within the scope of his or her actual, usual or ostensible authority will be imputed to the body corporate; and

(b) the conduct and state of mind of an employee or agent of a natural person acting within the scope of his or her actual, usual or ostensible authority will be imputed to that person.

(2)  Where –

(a) a natural person is convicted of an offence against this Act; and

(b) the person would not have been convicted of the offence but for the operation of subsection (1) –

the person is not liable to be punished by imprisonment for the offence.

(3)  For the purposes of this section, a reference to conduct or acting includes a reference to failure to act.

59.   Statement of officer evidence against body corporate

In proceedings for an offence against this Act by a body corporate, a statement made by an officer of the body corporate is admissible as evidence against the body corporate.

60.   Liability of officers of body corporate

(1)  Where a body corporate commits an offence against this Act, a person who is an officer of the body corporate is –

(a) subject to the general defence under this Part, guilty of an offence; and

(b) subject to subsection (2) , liable to the same penalty as may be imposed for the principal offence when committed by a natural person.

(2)  Where an officer of a body corporate is convicted of an offence under subsection (1) , the officer is not liable to be punished by imprisonment for the offence.

(3)  Where a body corporate commits an offence of contravening a provision of this Act, an officer of the body corporate who knowingly promoted or acquiesced in the contravention is also guilty of an offence against that provision.

(4)  An officer of a body corporate may be prosecuted and convicted of an offence pursuant to subsection (1) or (3) whether or not the body corporate has been prosecuted or convicted of the offence committed by the body corporate.

61.   Reports in respect of alleged contraventions

Where a person reports to the Director or a council an alleged contravention of this Act, the Director or the council must, at the request of the person, advise the person as soon as practicable of the action (if any) taken or proposed to be taken by the Director or the council in respect of the allegation.

62.   Commencement of proceedings for offences

(1)  Proceedings for an offence against this Act may be commenced –

(a) in the case of an offence relating to a level 1 activity or an environmental nuisance, by an authorized officer or a council officer; or

(b) in any other case, by an authorized officer.

(2)  Proceedings for an offence against this Act may be commenced at any time within 3 years after the date of the alleged commission of the offence or, if the court is satisfied that it is just and reasonable, at any later time within 10 years after the date of the alleged commission of the offence.

63.   Orders by court against offenders

(1)  Where, in proceedings for an offence against this Act, the court finds the defendant guilty of a contravention of this Act that resulted in environmental harm, the court may, in addition to any penalty it may impose, do one or more of the following:

(a) order the person to take specified action to make good any resulting environmental damage and, if appropriate, to take specified action to prevent or mitigate further environmental harm;

(b) order the person to carry out a specified project for the restoration or enhancement of the environment in a public place or for the public benefit;

(c) order the person to take specified action to publicize the contravention and its environmental and other consequences and any other orders made against the person;

(d) order the person to pay –

(i) to any public authority that has incurred costs or expenses in taking action to prevent or mitigate the environmental harm or to make good any resulting environmental damage; and

(ii) to any person who has suffered loss or damage to property as a result of the contravention, or incurred costs or expenses in taking action to prevent or mitigate such loss or damage –

the reasonable costs and expenses so incurred, or compensation for the loss or damage so suffered, as the case may be, in such amount as is determined by the court.

(2)  The court may, by an order under this section, fix a period for compliance and impose any other requirements the court considers necessary or expedient for enforcement of the order.

64.   Recovery of technical costs associated with prosecutions

Where a person is convicted of an offence against this Act, the court may, on application by the Director or a council, order the convicted person to pay to the Director or the council the reasonable costs and expenses incurred by the Director or the council in the taking of any samples or the conduct of tests, examinations or analyses in the course of the investigation and prosecution of the offence.

65.   

[Section 65 Repealed by No. 56 of 2000, s. 31, Applied:14 Jul 2000] .  .  .  .  .  .  .  .  

66.   Recovery from related bodies corporate

Where –

(a) an amount is payable by a body corporate under this Act or an order of a court made under this Act; and

(b) at the time of the contravention giving rise to that liability, that body and another body were related bodies corporate –

the related bodies corporate are jointly and severally liable to make the payment.

Division 5 - Environmental infringement notices

67.   Service and acceptance of an environmental infringement notice

(1)  Where an authorized officer or a council officer is satisfied that a person has committed a prescribed offence, the authorized officer or the council officer may serve on that person an environmental infringement notice in respect of that offence.

(2)  An environmental infringement notice is to specify –

(a) the offence in respect of which it is served; and

(b) the penalty or penalties for the offence; and

(c) the address of the person on whom it is served –

and is to be in such form, or contain such information or other matter, as may be prescribed.

(3)  An environmental infringement notice served on a person is to indicate clearly to that person that if he or she disregards the notice he or she may be prosecuted before a court for the offence to which it relates.

(4)  Unless it has been withdrawn, an environmental infringement notice served on a person may, subject to subsection (5) , be accepted by that person either –

(a) by the payment, within 21 days of the service of the notice, of the penalty specified in the notice to the designated clerk of petty sessions specified in the notice or the general manager specified in the notice; or

(b) [Section 67 Subsection (4) amended by No. 56 of 2000, s. 32, Applied:14 Jul 2000] by lodging with the clerk of petty sessions or general manager, within 21 days of the service of the notice, a written undertaking by that person to pay that penalty by such instalments or within such time as the clerk or general manager may, in accordance with section 69 , direct.

(5)  Where an environmental infringement notice served on a person has not been accepted by that person in either of the ways prescribed in subsection (4) at the expiry of the appropriate period prescribed in that subsection, the designated clerk of petty sessions or general manager may, by written notification to that person, allow that person an additional period of 14 days beginning at the end of the first-mentioned period in which to accept the environmental infringement notice.

(6)  Where an environmental infringement notice in respect of a prescribed offence has been served on a person, proceedings are not to be brought against that person for that offence if the notice has been accepted.

(7)  Unless the environmental infringement notice has been withdrawn, proceedings are not to be brought within –

(a) a period of 28 days following the service of the notice, if the person has not been allowed an additional period pursuant to subsection (5) ; or

(b) a period of 42 days following the service of the notice, if the person has been allowed such an additional period.

(8)  Where an environmental infringement notice in respect of an offence has been accepted by a person and has not been withdrawn, that acceptance is, in relation to proceedings for any other offence, to be treated as a conviction for the offence in respect of which the notice was served unless the court before which those proceedings are taken is satisfied that it is unjust that it should be so treated.

(9)  Acceptance of an environmental infringement notice is not taken as an admission of liability for the purpose of, or in any way to affect or prejudice, any civil claim, action or proceeding.

(10)  For the purposes of this section, the designated clerk of petty sessions is the clerk of petty sessions of the relevant district declared under section 43H (8) of the Traffic Act 1925 .

68.   Withdrawal of an environmental infringement notice

(1)  An environmental infringement notice that has been served on a person may, whether or not it has been accepted, be withdrawn as provided in subsection (2) at any time within –

(a) a period of 28 days following the service of the notice, if the person has not been allowed an additional period pursuant to section 67 (5) ; or

(b) a period of 42 days following the service of the notice, if the person has been allowed such an additional period.

(2)  For the purposes of subsection (1) , an environmental infringement notice served on a person may be withdrawn by the service on that person of a withdrawal notice stating that the environmental infringement notice has been withdrawn.

(3)  A withdrawal notice is to be in the prescribed form, is to be signed by the Director or by a person authorized by the Director for the purpose or the general manager specified in the environmental infringement notice and is to state that the environmental infringement notice has been withdrawn.

(4)  Where an environmental infringement notice has been withdrawn and a sum has been paid to a clerk of petty sessions or a general manager under the notice, that clerk or general manager must repay the sum so paid to the person on whom the notice was served.

(5)  Where an environmental infringement notice has been served in respect of an offence and has been withdrawn, no evidence of the service, acceptance or withdrawal of the notice is admissible in any proceedings for that offence.

(6)  References in this Act to the withdrawal of an environmental infringement notice are taken to be references to the withdrawal of that notice under this section.

69.   Effect of undertaking to pay a prescribed penalty

(1)  Where an undertaking referred to in section 67 (4) (b) is lodged with a clerk of petty sessions or a general manager, the clerk or general manager must direct the person giving the undertaking to pay the penalty to which the undertaking relates in such instalments or within such time as may be specified in the directions.

(2)  Directions may not be given if they would have the effect of allowing any part of the penalty to which they relate to be paid after the end of 63 days from the date on which the environmental infringement notice was served.

(3)  Before giving directions to a person, the clerk of petty sessions or the general manager must consider any representations made to him or her by or on behalf of that person, whether at the time the undertaking is lodged or otherwise, with respect to the financial circumstances of the person, and must give such directions as, having regard to those representations and all the circumstances of the case, the clerk or general manager considers just and reasonable.

(4)  Where a person fails to comply with any directions, the same proceedings may be had in respect of any part of the penalty that has not been paid as if the penalty had been imposed on that person following summary conviction for an offence.

70.   Service of notices

(1)  An environmental infringement notice is to be served on a person by delivering it to him or her in person.

(2)  A withdrawal notice is to be served on a person by delivering it to him or her in person or by post.

(3)  A notification under section 67 (5) by a clerk of petty sessions or a general manager is to be served on a person by sending it by post addressed to that person at the place shown as the address of that person in the relevant environmental infringement notice.

71.   Application of penalties in respect of environmental infringement notices

(1)  Any sums paid to a clerk of petty sessions under this Part by way of penalty are to be paid into the Consolidated Fund.

(2)  Subject to subsection (3) , any penalty which is paid to a clerk of petty sessions under this Part (whether before or after summary conviction) is to be paid to the Environment Protection Fund out of the Consolidated Fund without further appropriation than this section.

(3)  Where a person has been summarily convicted of an offence in respect of which an environmental infringement notice was served by a council officer, any penalty which is paid to a clerk of petty sessions in respect of that conviction is to be paid to the relevant council out of the Consolidated Fund without further appropriation than this section.

72.   Prescribed offences and penalties for Division 5

[Section 72 Substituted by No. 56 of 2000, s. 33, Applied:14 Jul 2000]

(1)  The regulations may prescribe offences for the purposes of this Division and the penalties applicable under this Division to those offences.

(2)  The offences that may be prescribed for the purposes of subsection (1) may include –

(a) any offence that is an offence under this Act or the regulations; or

(b) any offence that is an offence under the Pollution of Waters by Oil and Noxious Substances Act 1987 or regulations made under that Act; or

(c) any offence under section 63(2)(c) of the Land Use Planning and Approvals Act 1993 .

(3)  Regulations made for the purposes of subsection (1) may provide that an offence is a prescribed offence for the purposes of this Division only if it is constituted by conduct of a type specified in the regulations.

(4)  If an offence under the Pollution of Waters by Oil and Noxious Substances Act 1987 , the regulations made under that Act or section 63(2)(c) of the Land Use Planning and Approvals Act 1993 is prescribed by the regulations for the purposes of this Division –

(a) this Division applies in respect of that offence; and

(b) this Division is to be read as one with the Pollution of Waters by Oil and Noxious Substances Act 1987 , the regulations made under that Act or the Land Use Planning and Approvals Act 1993 , as the case requires.

PART 5 - Environmental Impact Assessments

73.   Requirement for environmental impact assessment

A requirement under any law for an environmental impact assessment to be undertaken in respect of a proposed environmentally relevant activity is to be read as a requirement for the authority responsible for assessing the proposed environmentally relevant activity to undertake an environmental impact assessment in accordance with the Environmental Impact Assessment Principles.

74.   Environmental Impact Assessment Principles

(1)  An environmental impact assessment may be required when an environmentally relevant activity is proposed to be undertaken by the public or the private sector.

(2)  The level of assessment which may be required is to be appropriate to the degree of significance of the proposed environmentally relevant activity to the environment and the likely public interest in the proposed activity.

(3)  Preparation of the case required for assessment of the proposed environmentally relevant activity must be undertaken by the proponent in accordance with the requirements of the authority responsible for assessing the proposed environmentally relevant activity.

(4)  An authority responsible for assessing the proposed environmentally relevant activity must provide the proponent of the proposed activity with guidance on –

(a) the potential environmental impacts arising from the proposed activity; and

(b) the issues arising from the proposed activity which might give rise to public concern; and

(c) the level of assessment required; and

(d) the timing for each stage of the assessment.

(5)  If required by the Director of Public Health, an environmental impact assessment must include an assessment of the impact of the proposed environmentally relevant activity on public health.

(6)  An opportunity is to be provided for public consultation on the proposal before the assessment process is complete.

(7)  The authority responsible for assessing a proposed environmentally relevant activity must publicly disclose all information relating to the environmental impact of the proposal, except where there is a legitimate commercial, national security or environmental reason for confidentiality.

(8)  The authority responsible for assessing a proposed environmentally relevant activity must develop procedures with a view to resolving any conflict or dispute which may arise for consideration during the course of the assessment process.

(9)  The environmental impact assessment is to establish the information base for decision-making on –

(a) the environmental impacts of the proposed environmentally relevant activity; and

(b) whether the proposed activity should proceed; and

(c) any restrictions or conditions under which the proposed activity should proceed; and

(d) the management regime under which the proposed activity should proceed.

PART 6 - Ozone Protection

Division 1 - Preliminary

75.   Non-application of Part 6

(1)  The provisions of this Part do not apply to –

(a) [Section 75 Subsection (1) amended by No. 56 of 2000, s. 34, Applied:14 Jul 2000] an article, other than any foam of a kind referred to in section 81 , that contains only a minimal amount of a controlled substance; or

(b) the sale or purchase of a controlled article.

(2)  For the purposes of subsection (1) , a minimal amount of a controlled substance includes an amount produced or utilized as part of the process of manufacturing the article which contains that substance.

Division 2 - Restricted and prohibited activities

76.   Sales

[Section 76 Substituted by No. 56 of 2000, s. 35, Applied:14 Jul 2000]

(1)  In this section,

controlled substance includes a substance specified in Schedule 1 to the Ozone Protection Act 1989 of the Commonwealth, whether existing alone or in a mixture, that is a chemical product in respect of which section 18(1) or (2) of the Agricultural and Veterinary Chemicals (Control of Use) Act 1995 applies.

(2)  A person must not sell an amount of a controlled substance unless the person has an authorization to sell controlled substances or is acting under the direction of a person who has such an authorization.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 1 000 penalty units; or

(b) a natural person, a fine not exceeding 500 penalty units.

77.   Purchases

(1)  A person must not purchase an amount of a controlled substance unless the person has an authorization, or is acting under the direction of a person who has an authorization, to –

(a) purchase controlled substances; or

(b) sell that amount of that substance.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 1 000 penalty units; or

(b) a natural person, a fine not exceeding 500 penalty units.

(2)  Subsection (1) does not apply to a person who engages a person, to whom an authorization is issued, for the purpose of –

(a) servicing a controlled article; or

(b) installing a controlled article.

78.   Failure to comply with authorization conditions

A person must not contravene –

(a) a condition to which an authorization issued to that person is subject; or

(b) a condition to which a recognized interstate authorization held by that person is subject.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 500 penalty units; or

(b) a natural person, a fine not exceeding 250 penalty units.

79.   Controlled activities

A person must not undertake a controlled activity unless the person –

(a) has an authorization to do so; or

(b) is under the direct and immediate control of a supervisor who has an authorization to undertake that activity and the person undertakes the activity in accordance with that authorization.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 1 000 penalty units; or

(b) a natural person, a fine not exceeding 500 penalty units.

80.   Possession of portable halon fire extinguishers

A person must not possess a portable halon fire extinguisher after 31 December 1995 unless the person has an authorization to do so.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 500 penalty units; or

(b) a natural person, a fine not exceeding 250 penalty units.

80A.   Decommissioning of non-essential fixed halon flooding systems

[Section 80A Inserted by No. 56 of 2000, s. 36, Applied:14 Jul 2000]

(1)  A person who owns or has control of a fixed halon flooding system must ensure that before 1 July 2001 –

(a) all the halon contained in the system is removed by a person who holds an authorization in respect of the decommissioning of controlled articles; and

(b) the system is decommissioned.

(2)  Subsection (1) does not apply to a person who holds an authorization to own or have control of a fixed halon flooding system.

(3)  For the purposes of subsections (1) and (2) ,

person who owns or has control of a fixed halon flooding system includes –

(a) the occupier of premises; and

(b) the person in charge of a vehicle; and

(c) the master of a marine vessel.

81.   Manufacturing and selling foam

A person must not, without an authorization to do so –

(a) manufacture rigid polyurethane foam for use as packaging material using a controlled substance in that manufacturing process; or

(b) manufacture extruded polystyrene foam for use as packaging or insulation material using a controlled substance in that manufacturing process; or

(c) manufacture flexible polyurethane foam using a controlled substance in that manufacturing process; or

(d) sell any foam referred to in paragraph (a) , (b) or (c) if a controlled substance has been used in the manufacture of that foam.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 1 000 penalty units; or

(b) a natural person, a fine not exceeding 500 penalty units.

81A.   Needlessly releasing ozone-depleting substance

[Section 81A Inserted by No. 56 of 2000, s. 37, Applied:14 Jul 2000]

(1)  In this section,

needless release of an ozone-depleting substance includes, but is not limited to –

(a) the careless release of an ozone-depleting substance; and

(b) the unnecessary release of an ozone-depleting substance; and

(c) the release of an ozone-depleting substance due to the failure to properly maintain equipment that uses an ozone-depleting substance; and

(d) the release of an ozone-depleting substance due to the failure of a person servicing equipment that uses an ozone-depleting substance to comply with relevant industry codes of practice.

(2)  A person must not needlessly release or allow the needless release of an ozone-depleting substance.

Penalty:  In the case of –

(a) a body corporate – a fine not exceeding 500 penalty units; and

(b) a natural person – a fine not exceeding 250 penalty units.

81B.   Scrapping of controlled article containing ozone-depleting substance

[Section 81B Inserted by No. 56 of 2000, s. 37, Applied:14 Jul 2000]

(1)  A person who owns or has control of a controlled article that contains an ozone-depleting substance must not dismantle, scrap or dump, or cause or allow the dismantling, scrapping or dumping, of the controlled article except where that ozone-depleting substance has been removed from the controlled article by a person who holds an authorization in respect of the decommissioning of controlled articles.

Penalty:  In the case of –

(a) a body corporate – a fine not exceeding 500 penalty units; and

(b) a natural person – a fine not exceeding 250 penalty units.

(2)  Subsection (1) does not apply in respect of a controlled article that is a domestic refrigerator or a domestic air conditioner.

Division 3 - Individual Authorizations

[Division 3 of Part 6 Heading amended by No. 56 of 2000, s. 38, Applied:14 Jul 2000]

82.   Applications for individual authorization

(1)  [Section 82 Subsection (1) amended by No. 56 of 2000, s. 39, Applied:14 Jul 2000] A person may apply for an individual authorization by lodging with the Director–

(a) an application in a form approved by the Director; and

(b) the prescribed fee.

(2)  The Director may require an applicant to provide any further information which the Director considers necessary for a proper assessment of the application.

83.   Issue or refusal of individual authorization

(1)  [Section 83 Subsection (1) amended by No. 56 of 2000, s. 40, Applied:14 Jul 2000] Subject to subsections (2) and (3) , the Director may issue or refuse to issue an individual authorization to undertake a controlled activity to a person who applied under section 82 .

(2)  [Section 83 Subsection (2) amended by No. 56 of 2000, s. 40, Applied:14 Jul 2000] The Director may issue an individual authorization to a person to undertake a controlled activity only if the Director is satisfied–

(a) that the applicant has an adequate awareness of the health and environmental effects of stratospheric ozone depletion and the need to minimize emissions of controlled substances to protect the stratospheric ozone layer; and

(b) that the applicant has an adequate knowledge of the provisions of this Act, any regulations made under it and any codes of practice relevant to the controlled activity.

(3)  [Section 83 Subsection (3) substituted by No. 56 of 2000, s. 40, Applied:14 Jul 2000] The Director may issue an individual authorization to a person to install, own or have control of a fixed halon flooding system in or at any premises, vehicle or marine vessel if satisfied that there is no practical alternative means of fire protection available for the premises, vehicle or vessel and that a fixed halon flooding system is required –

(a) to protect persons in situations where human occupancy is necessary and evacuation is not possible; or

(b) to protect the continued operation of equipment where that operation is necessary to protect or support human life and an alternative means of fire protection does not exist; or

(c) to protect the continued operation of equipment where that operation is critical to the community and failure of the operation is likely to have serious consequences and an alternative means of fire protection does not exist.

(4)  [Section 83 Subsection (4) amended by No. 56 of 2000, s. 40, Applied:14 Jul 2000] The Director may issue an individual authorization to a person to manufacture, install, service or decommission a portable halon fire extinguisher only if the Director is satisfied that there is no practical alternative type of fire extinguisher available to meet the applicant's needs and that a portable halon fire extinguisher is required for a purpose specified in subsection (3) .

(5)  [Section 83 Subsection (5) amended by No. 56 of 2000, s. 40, Applied:14 Jul 2000] For the purposes of deciding whether to issue an individual authorization, the Director may take advice from a body jointly established by the Minister and a Minister of the Commonwealth or any other State or Territory to consider applications for the use of controlled substances.

(6)  [Section 83 Subsection (6) amended by No. 56 of 2000, s. 40, Applied:14 Jul 2000] If the Director refuses to issue an individual authorization to a person, the Director must, by notice in writing served on the person, inform the person of that refusal and the reasons for it.

(7)  [Section 83 Subsection (7) amended by No. 56 of 2000, s. 40, Applied:14 Jul 2000] A person who is aggrieved by the refusal of the Director to issue an individual authorization to that person may appeal to the Appeal Tribunal.

84.   Form and authority of individual authorization

(1)  [Section 84 Subsection (1) amended by No. 56 of 2000, s. 41, Applied:14 Jul 2000] An individual authorization issued by the Director is to be in a form approved by the Director.

(2)  [Section 84 Subsection (2) amended by No. 56 of 2000, s. 41, Applied:14 Jul 2000] An individual authorization authorizes the person to whom it is issued or any person acting under his or her direction to do any of the things specified in that authorization.

(3)  [Section 84 Subsection (3) amended by No. 56 of 2000, s. 41, Applied:14 Jul 2000] An individual authorization may apply to–

(a) a specified controlled substance, controlled article or controlled activity; or

(b) a specified type or amount of, or specified transactions in relation to, a controlled substance, controlled article or controlled activity.

(4)  [Section 84 Subsection (4) amended by No. 56 of 2000, s. 41, Applied:14 Jul 2000] An individual authorization may be issued for such period, and be subject to such conditions, as the Director thinks fit.

(5)  [Section 84 Subsection (5) amended by No. 56 of 2000, s. 41, Applied:14 Jul 2000] A person who is aggrieved by the terms of an individual authorization issued to that person may appeal to the Appeal Tribunal.

85.   Individual authorization fee

(1)  [Section 85 Subsection (1) amended by No. 56 of 2000, s. 42, Applied:14 Jul 2000] A person to whom an individual authorization is issued must pay the prescribed fee in respect of that authorization so that it is received by the Director on or before the day on which the authorization is to take effect.

(2)  [Section 85 Subsection (2) amended by No. 56 of 2000, s. 42, Applied:14 Jul 2000] If a person fails to pay the fee as required, the individual authorization has no effect.

86.   Alteration of conditions of individual authorization

(1)  The Director may –

(a) [Section 86 Subsection (1) amended by No. 56 of 2000, s. 43, Applied:14 Jul 2000] alter the conditions to which an individual authorization is subject by–

(i) amending or omitting a condition; or

(ii) imposing another condition; or

(b) [Section 86 Subsection (1) amended by No. 56 of 2000, s. 43, Applied:14 Jul 2000] impose a condition on an individual authorization.

(2)  [Section 86 Subsection (2) amended by No. 56 of 2000, s. 43, Applied:14 Jul 2000] The Director must, by notice in writing served on the person to whom an individual authorization is issued, inform that person of any alteration of the conditions to which that authorization is subject or the imposition of a condition on that authorization.

(3)  [Section 86 Subsection (3) amended by No. 56 of 2000, s. 43, Applied:14 Jul 2000] An alteration of the conditions to which an individual authorization is subject and the imposition of a condition on an individual authorization takes effect on the day specified in the notice, being a day not earlier than 7 days after the day on which the notice is served.

(4)  [Section 86 Subsection (4) amended by No. 56 of 2000, s. 43, Applied:14 Jul 2000] A person who is aggrieved by a decision of the Director to alter an individual authorization issued to that person may appeal to the Appeal Tribunal.

87.   Cancellation of individual authorization

(1)  [Section 87 Subsection (1) amended by No. 56 of 2000, s. 44, Applied:14 Jul 2000] The Director may cancel an individual authorization if satisfied that the person to whom it was issued–

(a) has contravened a condition to which it is subject; or

(b) has been convicted of an offence against this Act; or

(c) no longer requires the authorization.

(2)  [Section 87 Subsection (2) amended by No. 56 of 2000, s. 44, Applied:14 Jul 2000] If the Director decides to cancel an individual authorization, the Director must, by notice in writing served on the person to whom the individual authorization is issued, inform that person of the cancellation of the authorization and the reasons for it.

(3)  [Section 87 Subsection (3) amended by No. 56 of 2000, s. 44, Applied:14 Jul 2000] The cancellation of an individual authorization takes effect on the day specified in the notice, being a day not earlier than 7 days after the day on which the notice is served.

(4)  [Section 87 Subsection (4) amended by No. 56 of 2000, s. 44, Applied:14 Jul 2000] A person who is aggrieved by a decision of the Director to cancel an individual authorization issued to that person may appeal to the Appeal Tribunal.

(5)  [Section 87 Subsection (5) amended by No. 56 of 2000, s. 44, Applied:14 Jul 2000] The Director may reinstate a cancelled individual authorization for a specified period and purpose if the Director considers that exceptional circumstances exist for doing so.

88.   Recognition of interstate individual authorizations

(1)  [Section 88 Subsection (1) amended by No. 56 of 2000, s. 45, Applied:14 Jul 2000] A person who holds an interstate individual authorization may apply for it to be recognized in Tasmania by lodging with the Director–

(a) an application in a form approved by the Director; and

(b) the prescribed fee.

(2)  The Director may require an applicant to provide any further information which the Director considers necessary for a proper assessment of the application.

(3)  [Section 88 Subsection (3) amended by No. 56 of 2000, s. 45, Applied:14 Jul 2000] If the Director recognizes an interstate individual authorization, it is to be treated, for the purposes of Division 2 of this Part, as if it is an individual authorization issued under this Act.

(4)  [Section 88 Subsection (4) amended by No. 56 of 2000, s. 45, Applied:14 Jul 2000] If the Director refuses to recognize an interstate individual authorization the Director must, by notice in writing served on the person who applied for the recognition, inform that person of the refusal and the reasons for it.

(5)  [Section 88 Subsection (5) amended by No. 56 of 2000, s. 45, Applied:14 Jul 2000] The Director is to determine the period during which an interstate individual authorization is recognized.

(6)  [Section 88 Subsection (6) amended by No. 56 of 2000, s. 45, Applied:14 Jul 2000] The period during which an interstate individual authorization is recognized must end on or before the final day of the period during which the interstate individual authorization is valid.

(7)  [Section 88 Subsection (7) amended by No. 56 of 2000, s. 45, Applied:14 Jul 2000] A person who is aggrieved by the refusal of the Director to recognize an interstate individual authorization held by that person may appeal to the Appeal Tribunal.

89.   Statement of recognition

[Section 89 Amended by No. 56 of 2000, s. 46, Applied:14 Jul 2000] The Director must endorse on a recognized interstate individual authorization or attach to a recognized interstate individual authorization a statement which–

(a) indicates that the interstate authorization is recognized under this Act; and

(b) specifies the period of that recognition.

90.   Recognition fee

(1)  [Section 90 Subsection (1) amended by No. 56 of 2000, s. 47, Applied:14 Jul 2000] A person who holds a recognized interstate individual authorization must pay the prescribed fee in respect of that recognition so that it is received by the Director on or before the day on which the recognition is to take effect.

(2)  If a person fails to pay the fee as required, the recognition has no effect.

91.   Cancellation of recognition

(1)  [Section 91 Subsection (1) amended by No. 56 of 2000, s. 48, Applied:14 Jul 2000] The Director may cancel the recognition of an interstate individual authorization if the Director is satisfied that–

(a) [Section 91 Subsection (1) amended by No. 56 of 2000, s. 48, Applied:14 Jul 2000] the interstate individual authorization no longer has effect under the law under which it was issued; or

(b) [Section 91 Subsection (1) amended by No. 56 of 2000, s. 48, Applied:14 Jul 2000] the person who holds that interstate individual authorization–

(i) has contravened a condition to which it is subject; or

(ii) [Section 91 Subsection (1) amended by No. 56 of 2000, s. 48, Applied:14 Jul 2000] has been convicted of an offence involving a controlled substance, controlled article or controlled activity under this Part or under the law under which the interstate individual authorization was issued; or

(iii) [Section 91 Subsection (1) amended by No. 56 of 2000, s. 48, Applied:14 Jul 2000] no longer requires recognition of that interstate individual authorization in Tasmania.

(2)  [Section 91 Subsection (2) amended by No. 56 of 2000, s. 48, Applied:14 Jul 2000] If the Director decides to cancel the recognition of an interstate individual authorization, the Director must, by notice in writing served on the person who holds the recognized interstate individual authorization, inform that person of the cancellation of that recognition and the reasons for it.

(3)  [Section 91 Subsection (3) amended by No. 56 of 2000, s. 48, Applied:14 Jul 2000] The cancellation of the recognition of an interstate individual authorization takes effect on the day specified in the notice, being a day not earlier than 7 days after the day on which the notice is served.

(4)  [Section 91 Subsection (4) amended by No. 56 of 2000, s. 48, Applied:14 Jul 2000] A person who is aggrieved by a decision of the Director to cancel the recognition of an interstate individual authorization held by that person may appeal to the Appeal Tribunal.

Division 4 - General authorizations

91A.   General authorization

[Section 91A of Part 6 Inserted by No. 56 of 2000, s. 49, Applied:14 Jul 2000]

(1)  In this section,

specified means specified in a general authorization.

(2)  The Director may issue a general authorization authorising a person of a specified class to undertake a specified controlled activity.

(3)  The Director may issue a general authorization authorising a person of a specified class to install, own or have control of a fixed halon flooding system in or at any class of premises, vehicle or marine vessel only if satisfied that there is no practical alternative means of fire protection available in respect of the specified class of premises, vehicle or marine vessel and that a fixed halon flooding system is required –

(a) to protect persons in situations where human occupancy is necessary and evacuation is not possible; or

(b) to protect the continued operation of equipment where that operation is necessary to protect or support human life and an alternative means of fire protection does not exist; or

(c) to protect the continued operation of equipment where that operation is critical to the community and failure of the operation is likely to have serious consequences and an alternative means of fire protection does not exist.

(4)  A general authorization may specify any conditions with which a person of the specified class must comply in undertaking the specified controlled activity.

(5)  For the purposes of deciding whether to issue a general authorization, the Director may take advice from a body jointly established by the Minister and a Minister of the Commonwealth, any other State or a Territory to consider applications for the use of controlled substances.

(6)  A general authorization is to be published in the Gazette.

(7)  A general authorization –

(a) takes effect on the specified day or, if no day is specified, on the day on which it is gazetted; and

(b) remains in force until it is revoked.

91B.   Alteration or revocation of general authorization

[Section 91B of Part 6 Inserted by No. 56 of 2000, s. 49, Applied:14 Jul 2000]

(1)  In this section –

alter means –

(a) add any matter; and

(b) omit any matter; and

(c) omit any matter and substitute other matter;

matter includes a condition with which a person of the specified class must comply when undertaking the specified controlled activity;

specified means specified in the general authorization.

(2)  The Director may alter or revoke a general authorization by notice in the Gazette.

(3)  The alteration or revocation of a general authorization takes effect on the day set out in the alteration or revocation or, if no such day is set out, on the day the alteration or revocation is gazetted.

91C.   Authority of general authorization

[Section 91C of Part 6 Inserted by No. 56 of 2000, s. 49, Applied:14 Jul 2000]

(1)  In this section,

specified means specified in the general authorization.

(2)  A general authorization authorises a person of a specified class to undertake the specified controlled activity in accordance with any specified conditions.

PART 7 - Miscellaneous and Supplemental

Division 1 - Powers of authorized officers and council officers

92.   Powers of authorized officers and council officers

(1)  Subject to this Division, an authorized officer or a council officer may –

(a) enter and inspect any place or vehicle for any reasonable purpose connected with the administration or enforcement of this Act; and

(b) with the authority of a warrant issued under this Division or in circumstances in which the officer reasonably believes that serious or material environmental harm has been, or is likely to be, caused, use reasonable force to break into or open any part of, or anything in or on, any place or vehicle; and

(c) give directions for the stopping or movement of a vehicle as reasonably required in connection with the administration or enforcement of this Act; and

(d) take samples as reasonably required of any substance or thing from any place or vehicle for analysis in connection with the administration or enforcement of this Act; and

(e) require any person to produce any documents, including a written record that reproduces in an understandable form information stored by computer, microfilm or other process, as reasonably required in connection with the administration or enforcement of this Act; and

(f) examine, copy or take extracts from any documents or information so produced or require a person to provide a copy of any such document or information; and

(g) take photographs, films or audio, video or other recordings as reasonably required in connection with the administration or enforcement of this Act; and

(h) examine or test any plant, equipment, vehicle or other thing for the purpose of determining whether a provision of this Act is being, or has been, complied with, or cause or require it to be so examined or tested, or seize it or require its production for such examination or testing; and

(i) seize and retain, or issue a seizure order in respect of, anything that the officer reasonably suspects has been used in, or may constitute evidence of, a contravention of this Act; and

(j) require a person whom the officer reasonably suspects has committed, is committing or is about to commit a contravention of this Act or a permit under the Land Use Planning and Approvals Act 1993 to state the person's full name and usual place of residence and to produce evidence of the person's identity; and

(k) require a person whom the officer reasonably suspects has knowledge of matters in respect of which information is reasonably required for the administration or enforcement of this Act to answer questions in relation to those matters; and

(l) give any directions reasonably required in connection with the exercise of a power conferred by this subsection or otherwise in connection with the administration or enforcement of this Act.

(2)  An authorized officer or a council officer may not exercise the power of entry under this section except where –

(a) the occupier of the place consents to the entry; or

(b) the entry is authorized by a warrant; or

(c) in the case of a public place, the entry is made when the place is open to the public; or

(d) the entry is made when the officer believes on reasonable grounds that an environmentally relevant activity has been or is being carried out and –

(i) the officer has reasonable grounds for believing that an offence against this Act has been, is being or is about to be committed; or

(ii) the place is open for conduct of business; or

(iii) the place is otherwise open for entry.

(3)  If the entry is made otherwise than under the authority of a warrant –

(a) the entry must be made at a time that is reasonable; and

(b) in the case of an entry onto residential premises, the authorised officer or council officer must provide the occupier with a written statement setting out the ground upon which the officer believes an offence against this Act has been, is being, or is about to be, committed.

(4)  An authorized officer or a council officer who is seeking to exercise powers under this Act must, when reasonably required by any person, produce evidence of identification and authorization.

(5)  Where a person whose native language is not English is suspected of having committed an offence against this Act and the person is not reasonably fluent in English –

(a) the person is entitled to be assisted by an interpreter during any questioning conducted by an authorized officer or a council officer in the course of an investigation of the suspected offence; and

(b) where it appears that the person may be entitled to be assisted by an interpreter, the officer must not proceed with any questioning, or further questioning, until the person has been informed of the right to an interpreter; and

(c) if the person requests the assistance of an interpreter, the officer must not proceed with any questioning, or further questioning, until an interpreter is present.

(6)  In the exercise of powers under this Act an authorized officer or a council officer may be assisted by such persons as he or she considers necessary in the circumstances.

(7)  An authorized officer or a council officer may require an occupier of any place or a person apparently in charge of any plant, equipment, vehicle or other thing to give to the officer or a person assisting the officer such assistance as is reasonably required by the officer for the effective exercise of powers conferred by this Act.

(8)  In this section, residential premises has the same meaning as in section 53 .

93.   Issue of warrants

(1)  Where, on the application of an authorized officer or a council officer, a justice is satisfied that there are reasonable grounds to believe –

(a) that a contravention of this Act has been, is being, or is about to be, committed in or on a place or vehicle; or

(b) that something may be found in or on a place or vehicle that has been used in, or constitutes evidence of, a contravention of this Act –

the justice may issue a warrant in respect of the place or vehicle authorizing an authorized officer or a council officer, with such assistants as he or she considers necessary, to use reasonable force to break into or open any part of, or anything in or on, the place or vehicle as specified in the warrant.

(2)  The grounds of an application for a warrant must be verified by affidavit.

(3)  An application for the issue of a warrant may be made either personally or by telephone.

(4)  An application for the issue of a warrant may not be made by telephone unless in the opinion of the applicant a warrant is urgently required and there is insufficient time to make the application personally.

(5)  Where an application for the issue of a warrant is made by telephone, the following provisions apply:

(a) the applicant must inform the justice of his or her name and identify himself or herself as an authorized officer or a council officer, and the justice, on receiving that information, is entitled to assume, without further inquiry, that the applicant is an authorized officer or a council officer;

(b) the applicant must inform the justice of the grounds on which he or she seeks the issue of the warrant;

(c) if it appears to the justice from the information given by the applicant that there are proper grounds for the issue of a warrant, the justice must inform the applicant of the facts on which he or she relies as grounds for the issue of the warrant, and must not proceed to issue the warrant unless the applicant undertakes to make an affidavit verifying those facts;

(d) if the applicant gives such an undertaking, the justice may then make out and sign a warrant, noting on the warrant the facts on which he or she relies as grounds for the issue of the warrant;

(e) the warrant will be taken to have been issued, and will come into force, when signed by the justice;

(f) the justice must inform the applicant of the terms of the warrant;

(g) the applicant must, as soon as practicable after the issue of the warrant, forward to the justice an affidavit verifying the facts referred to in paragraph (c) .

(6)  An authorized officer or a council officer who executes a warrant must, as soon as practicable after execution of the warrant –

(a) prepare a notice in the prescribed form containing –

(i) his or her name and a statement that he or she is an authorized officer or a council officer; and

(ii) the name of the justice who issued the warrant and the date and time of its issue; and

(iii) a description of the place or vehicle to which the warrant relates and of the authority conferred by the warrant; and

(b) give the notice to the occupier or person apparently in charge of the place or vehicle in respect of which the warrant was issued or leave it for him or her in a prominent position on the place or vehicle.

(7)  A warrant expires if it has not been executed by the end of one month after the day on which it was issued.

94.   Provisions relating to seizure

(1)  A seizure order under this Division –

(a) must be in the form of a written notice; and

(b) must be served on the owner or person in control of the thing to which the order relates; and

(c) may be varied or revoked by written notice served on that owner or person.

(2)  Where a seizure order is issued under this Division, a person must not remove or interfere with the thing to which the order relates without the approval of the Director or, in the case of a seizure order issued by a council officer, the council before an order is made under subsection (4) in respect of the thing, or the seizure order is discharged under subsection (5) .

Penalty:  Fine not exceeding 40 penalty units.

(3)  Where a thing has been seized or made subject to a seizure order under this Division, the thing must, if it has been seized, be held pending proceedings for an offence against this Act related to the thing seized unless the Director or the council, as the case may require, on application, authorizes its release to the person from whom it was seized, or to any person who had legal title to it at the time of its seizure, subject to such conditions as the Director or the council thinks fit (including conditions as to the giving of security for satisfaction of an order under subsection (4) (b) ).

(4)  Where proceedings for an offence against this Act relating to a thing which has been seized or made subject to a seizure order under this Division are instituted within 6 months after its seizure or the issuing of the seizure order and the defendant is convicted or found guilty of the offence, the court may –

(a) order that it be forfeited to the Director or the council, as the case may require; or

(b) where it has been released pursuant to subsection (3) or is the subject of a seizure order, order that it be forfeited to the Director or the council, as the case may require, or that the person to whom it was released or the defendant pay to the Director or the council an amount equal to its market value at the time of its seizure or the issuing of the seizure order, as the court thinks fit.

(5)  Where –

(a) proceedings are not instituted for an offence against this Act relating to a thing which has been seized or made subject to a seizure order under this Division within 6 months after its seizure or the issuing of the seizure order; or

(b) proceedings have been so instituted and the defendant is found not guilty of the offence or the defendant is convicted or found guilty of the offence but no order for forfeiture is made under subsection (4) –

the person from whom the thing was seized, or any person with legal title to it, is entitled to recover from the Director or the council, as the case may require, (if necessary, by action in a court of competent jurisdiction) the thing itself, or if it has been damaged or destroyed, compensation of an amount equal to its market value at the time of its seizure and the seizure order is discharged.

95.   Offence to hinder, &c., authorized officers and council officers

(1)  A person must not –

(a) hinder or obstruct an authorized officer or a council officer, or a person assisting an authorized officer or council officer, in the exercise of powers conferred by this Act; or

(b) use abusive, threatening or insulting language to an authorized officer or a council officer, or a person assisting an authorized officer or council officer; or

(c) refuse or fail to comply with a requirement or direction of an authorized officer or a council officer; or

(d) when required by an authorized officer or a council officer to answer a question, refuse or fail to answer the question to the best of the person's knowledge, information and belief; or

(e) falsely represent, by words or conduct, that he or she is an authorized officer or a council officer.

Penalty:  Fine not exceeding 40 penalty units.

(2)  A person must not assault an authorized officer or a council officer, or a person assisting an authorized officer or council officer, in the exercise of powers under this Act.

Penalty:  Fine not exceeding 80 penalty units or imprisonment for a period not exceeding 2 years, or both.

96.   Offences by authorized officers, &c.

An authorized officer or a council officer, or a person assisting an authorized officer or council officer, must not –

(a) address offensive language to any other person; or

(b) without lawful authority, hinder or obstruct or use or threaten to use force in relation to any other person; or

(c) without lawful authority, unreasonably refuse to provide evidence of identification and authorization when so required.

Penalty:  Fine not exceeding 40 penalty units.

Division 1A - Environment protection policies

Subdivision 1 - Environment Protection Policy Review Panel

[Subdivision 1 of Part 7 Inserted by No. 56 of 2000, s. 50, Applied:14 Jul 2000]

96A.   Environment Protection Policy Review Panel

(1)  The Environment Protection Policy Review Panel is established.

(2)  The Panel consists of –

(a) the chairperson who is the chairperson of the Resource Planning and Development Commission; and

(b) the member of the Board referred to in section 13(1)(c) ; and

(c) the member of the Board referred to in section 13(1)(d) ; and

(d) the member of the Board referred to in section 13(1)(e) .

(3)  Schedule 5A has effect with respect to the membership, meetings and proceedings of the Panel.

96B.   Functions and powers of Panel

(1)  The Panel has the functions imposed on it by this and any other Act.

(2)  The Panel may do all things necessary or convenient to be done for or in connection with, or incidental to, the performance of its functions.

Subdivision 2 - Contents and effect of environment protection policy

[Subdivision 2 of Part 7 Inserted by No. 56 of 2000, s. 50, Applied:14 Jul 2000]

96C.   Reason for, and scope of, environment protection policy

(1)  An environment protection policy may be made for the purpose of furthering any of the objectives of this Act.

(2)  Without limiting subsection (1) , an environment protection policy may be made in respect of any one or more of the following matters:

(a) a pollutant;

(b) an industry or activity;

(c) a technology or process;

(d) waste management;

(e) pollution control practice;

(f) land, air or water quality;

(g) noise;

(h) litter.

96D.   Contents of environment protection policy

(1)  An environment protection policy must state that the policy applies to the environment generally or to an aspect or part of the environment specified in the policy.

(2)  An environment protection policy may do one or more of the following:

(a) state the objectives to be achieved and maintained under the policy;

(b) identify the environmental values to be enhanced or protected under the policy;

(c) state indicators, parameters, factors or criteria to be used in measuring or deciding any quality or condition of the environment;

(d) establish a program by which the stated objectives are to be achieved and maintained including, but not limited to, the following:

(i) quantifying ambient conditions;

(ii) the qualities and maximum quantities of any pollutant permitted to be released into the environment;

(iii) the minimum standards to be complied with in the installation or operation of vehicles, plant or equipment for the control of pollutants or waste from specified sources or places;

(iv) measures designed to protect the environment or to minimise the possibility of environmental harm;

(e) provide for a performance assessment procedure in respect of that program;

(f) specify the emissions that are to be environmental nuisances for the purposes of paragraph (b) of the definition of "environmental nuisance" in section 3(1) ;

(g) specify maximum levels of particular pollutants for the purposes of section 55A(1) ;

(h) provide, for the purposes of section 55A(1) , that compliance with specified provisions of the environment protection policy will satisfy the general environmental duty.

(3)  An environment protection policy may make provision in relation to any matter in respect of which a regulation may be made under section 102 and may provide for fees to be payable in respect of matters specified in the policy.

(4)  An environment protection policy may –

(a) authorise any act, matter or thing in relation to which the policy may be made to be from time to time determined, applied or regulated by the Panel or the Director; and

(b) be made subject to conditions specified in the policy; and

(c) be made so as to apply differently according to any factors, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the policy; and

(d) provide that a contravention of, or failure to comply with, any provision of the policy is an offence; and

(e) in respect of each offence, provide for the imposition of a fine not exceeding 100 penalty units and, in the case of a continuing offence, a further fine not exceeding 100 penalty units for each day during which the offence continues; and

(f) in respect of an offence, provide who may prosecute the offence.

96E.   Interpretation of environment protection policy

The Acts Interpretation Act 1931 applies to the interpretation of an environment protection policy as if it were by-laws.

96F.   Application of certain Acts

(1)  An environment protection policy is not a statutory rule for the purposes of the Rules Publication Act 1953 .

(2)  The Treasurer, by notice published in the Gazette, may declare an environment protection policy to be subordinate legislation for the purposes of the Subordinate Legislation Act 1992 .

Subdivision 3 - Making of environment protection policy

[Subdivision 3 of Part 7 Inserted by No. 56 of 2000, s. 50, Applied:14 Jul 2000]

96G.   Notice of proposal to prepare draft environment protection policy

(1)  Before preparing a draft environment protection policy, the Minister must prepare and give notice of a proposal to prepare the draft environment protection policy.

(2)  The notice must –

(a) be published on 2 consecutive Saturdays –

(i) in a newspaper circulating generally throughout the State; and

(ii) if it is intended that the environment protection policy when completed will only apply to a particular area of the State, in a newspaper circulating generally in that area; and

(b) if it is intended that the environment protection policy when completed will only apply in respect of an aspect or part of the environment, specify that aspect or part; and

(c) state where copies of the proposal may be obtained; and

(d) invite from Government departments and agencies, public authorities, local government, industry organisations, interested groups and persons and members of the public the making of written submissions to the Minister on the proposal; and

(e) specify the day by which those submissions may be made, being a day not less than 30 days after the notice is first published in a newspaper.

96H.   Preparation of draft environment protection policy

(1)  After considering all submissions made within the time specified in a notice of proposal to prepare a draft environment protection policy under section 96G(2) , the Minister may prepare a draft environment protection policy.

(2)  When preparing a draft environment protection policy, the Minister must also prepare an impact statement which –

(a) explains the purpose and effect of the policy; and

(b) complies with Schedule 2 to the Subordinate Legislation Act 1992 .

96I.   Notice of draft environment protection policy

(1)  After preparing a draft environment protection policy and the impact statement referred to in section 96H(2) , the Minister must –

(a) give notice of the draft environment protection policy and impact statement; and

(b) provide a copy of that notice, the draft environment protection policy and the impact statement to the Panel.

(2)  The notice must –

(a) be published on 2 consecutive Saturdays –

(i) in a newspaper circulating generally throughout the State; and

(ii) if the draft environment protection policy only applies to a particular area of the State, in a newspaper circulating generally in that area; and

(b) if the draft environment protection policy only applies in respect of an aspect or part of the environment, specify that aspect or part; and

(c) state where copies of the draft environment protection policy and impact statement may be obtained; and

(d) invite from Government departments and agencies, public authorities, local government, industry organisations, interested groups and persons and members of the public the making of written submissions to the Panel on the draft environment protection policy and impact statement; and

(e) specify the day by which those submissions may be made, being a day not less than 30 days after the notice is first published in a newspaper.

96J.   Assessment of draft environment protection policy

The Panel –

(a) must consider all submissions properly made to it in respect of the draft environment protection policy and impact statement; and

(b) may hold hearings in respect of any submission or group of submissions; and

(c) may modify the draft environment protection policy; and

(d) must, within 42 days after the completion of the consideration of submissions and the holding of all hearings, submit to the Minister –

(i) a report on the findings of the Panel; and

(ii) if the Panel has modified the draft environment protection policy, a copy of that modified draft environment protection policy; and

(e) must publish notice of its report to the Minister in the Gazette and make the report and the modified draft environment protection policy, if any, available to the public.

96K.   Making of environment protection policy

(1)  On receiving the report from the Panel under section 96J , the Minister may –

(a) refuse to recommend to the Governor the making of an environment protection policy; or

(b) recommend to the Governor the making of an environment protection policy.

(2)  The Governor may make an environment protection policy in accordance with a recommendation made under subsection (1)(b) , and fix a day on which it will take effect.

(3)  Within 10 sitting days after an environment protection policy is made, the Minister must cause it to be laid before each House of Parliament.

(4)  An environment protection policy takes effect on the later of the following days:

(a) the day specified in it as the day on which it will take effect;

(b) the day after it has been approved by both Houses of Parliament.

(5)  An environment protection policy is approved by a House of Parliament –

(a) when the House passes a motion approving the environment protection policy; or

(b) at the end of 5 sitting days after the environment protection policy was laid before the House if no notice of motion to disapprove it is before the House; or

(c) if such a notice is before the House at the end of that period, when the first of the following occurs:

(i) the notice is withdrawn;

(ii) the motion is negatived;

(iii) a further period of 5 sitting days ends.

96L.   Interim environment protection policy

(1)  At any time on or after the day on which notice of a draft environment protection policy is first published in a newspaper, the Governor may, by notice published in the Gazette, make an interim environment protection policy if the Governor is satisfied, on the recommendation of the Minister, that it is necessary that an environment protection policy should come into operation without delay.

(2)  An interim environment protection policy takes effect on the day specified in it.

(3)  The Acts Interpretation Act 1931 applies to the interpretation of an interim environment protection policy as if it were by-laws.

(4)  An interim environment protection policy is not a statutory rule for the purposes of the Rules Publication Act 1953 .

(5)  Within 10 sitting days after an interim environment protection policy is made, the Minister must cause it to be laid before both Houses of Parliament.

(6)  An interim environment protection policy ceases to have effect –

(a) if the Governor revokes it by notice in the Gazette; or

(b) if either House of Parliament passes a resolution disallowing it; or

(c) if an environment protection policy is made as a result of the publication, consideration and assessment of the draft environment protection policy that is the basis of the interim environment protection policy; or

(d) at the end of 12 months after it took effect.

96M.   Amendment of environment protection policy

(1)  In this section,

significant change, in relation to an amendment to an environment protection policy, means an amendment to an environment protection policy that substantially alters the content or effect of the environment protection policy.

(2)  The Minister may require the Panel to determine whether a proposed amendment to an environment protection policy constitutes a significant change to the environment protection policy.

(3)  The Panel must, within 21 days after being required to make the determination or such longer period as the Minister allows –

(a) notify the Minister of its determination; and

(b) publish notice of its determination in the Gazette.

(4)  The Panel must make the determination available for inspection by the public.

(5)  If the Panel determines that the amendment is not a significant change to the environment protection policy, the Minister may –

(a) refuse to recommend to the Governor an amendment to the environment protection policy; or

(b) recommend to the Governor an amendment to the environment protection policy without following the procedure set out in sections 96G , 96H , 96I and 96J .

(6)  The Governor may amend an environment protection policy in accordance with a recommendation made under subsection (5)(b) , and fix a day on which it will take effect.

(7)  Section 96K does not apply to an amendment made under subsection (6) .

(8)  An amendment made under subsection (6) takes effect on the day specified in it or, if no day is specified, on the day on which its making is notified in the Gazette.

(9)  An amendment to an environment protection policy made under subsection (6) is not a statutory rule for the purposes of the Rules Publication Act 1953 .

(10)  The Acts Interpretation Act 1931 applies to the interpretation of an amendment to an environment protection policy as if the amendment were by-laws.

(11)  Any amendment of an environment protection policy that the Panel has determined is a significant change is to be made in accordance with sections 96G , 96H , 96I , 96J and 96K which apply in respect of the amendment as if it were the making of a new environment protection policy.

96N.   Review of environment protection policy

(1)  The Minister must review an environment protection policy at least once within each period of 5 years after it came into operation or the last review was conducted for the purposes of –

(a) assessing the effectiveness of the environment protection policy in achieving its stated objectives; and

(b) assessing whether, and how effectively, the environment protection policy has furthered the objectives set out in Schedule 1 ; and

(c) assessing the social and economic impact of the policy; and

(d) determining whether the environment protection policy should be retained in the same form, amended or revoked.

(2)  In conducting a review, the Minister may obtain information in the manner, and from the persons, the Minister considers appropriate.

96O.   Implementation and enforcement of environment protection policy

An environment protection policy is to be implemented and enforced by a council, the Board or another person as specified in the policy.

Division 2 - Miscellaneous provisions

97.   Environment Protection Fund

(1)  For the purposes of this Act, a fund called the Environment Protection Fund is established.

(2)  The Fund consists of –

(a) such proportion of fees paid under this Act as is specifically allocated by the Board; and

(b) all fines paid to the Fund in respect of offences under this Act; and

(c) any money received by the Board by way of a financial assurance under this Act; and

(d) any amount paid to the Director, or the value of anything forfeited to the Director, as a result of the exercise of the power of seizure in section 92 ; and

(e) any money appropriated by Parliament for the purposes of the Fund; and

(f) any money received by way of grant, gift or bequest for the purposes of the Fund; and

(g) any income from investment of money belonging to the Fund; and

(h) any money received from any other source.

(3)  The Fund may be applied by the Board –

(a) in making any payment required in connection with a financial assurance under this Act; and

(b) in making any payment required by the terms of an environmental agreement under this Act; and

(c) in making payments for or towards the cost of action taken to deal with an environmental emergency or its effects; and

(d) for the purposes of education and training programmes in relation to the protection, restoration or enhancement of the environment; and

(e) for the purposes of any investigations, research, pilot programmes or other projects relating to the protection, restoration or enhancement of the environment; and

(f) subject to section 99 , in making grants for environmental improvement purposes.

98.   Penalties

All penalties recovered in respect of offences under this Act are to be paid –

(a) in the case of a prosecution brought by a council, to that council; or

(b) in any other case, to the Environment Protection Fund.

98A.   Recovery of unpaid fees

[Section 98A Inserted by No. 56 of 2000, s. 51, Applied:14 Jul 2000]

(1)  A fee not paid by the due date is recoverable from the person liable to pay it as a debt due to the Crown.

(2)  The Minister, by notice in the Gazette, may impose a penalty as determined by the Treasurer for the non-payment of any fee.

99.   Grants for environmental improvement purposes

(1)  The Board may, with the approval of the Minister, make a grant of money to any person for environmental improvement purposes.

(2)  Environmental improvement purposes are any of the following:

(a) acquiring knowledge that may be of use for the purpose of improving any aspect of the environment;

(b) applying knowledge for that purpose;

(c) the training of persons to carry out research and development in respect of any aspect of the environment;

(d) the dissemination of information, or the provision of advice and assistance, to persons who are engaged in any activity which may have an effect on any aspect of the environment for the purpose of encouraging those persons to follow practices, or to adopt technical developments, designed or adapted to prevent or minimize any harmful effect on the environment;

(e) the publication of reports, periodicals, books or papers containing information that is related to environmental research and development;

(f) furthering an activity incidental to a purpose referred to in this section.

100.   Analysts

(1)  The Secretary of the Department may, with the approval of the Board, appoint persons to be analysts for the purposes of this Act.

(2)  In any proceedings, a certificate executed by a person appointed by the Secretary as an analyst and setting out details as to an analysis carried out by or under the direction of the person and the results of the analysis constitutes proof, in the absence of proof to the contrary, of the matters so certified.

101.   Protection from personal liability

(1)  An authorized officer, a council officer or any other person engaged in the administration of this Act does not incur any personal liability in respect of any act done or omitted to be done by the officer or person in good faith in the performance or exercise, or purported performance or exercise, of any function or power under this Act or in the administration or execution, or purported administration or execution, of this Act.

(2)  Subsection (1) does not preclude the Crown or a council from incurring liability that an authorized officer, a council officer or other person would, but for subsection (1) , incur.

102.   Regulations

(1)  The Governor may make regulations for the purposes of this Act.

(2)  Regulations under this section may be made for or with respect to –

(a) the periods within which, and the manner in which, applications under this Act may be made to the Appeal Tribunal; and

(b) the management of waste, including –

(i) the classification, generation, storage, treatment, transport, handling and disposal of waste; and

(ii) approvals for the removal, disposal and transport of waste; and

(iii) certificates for the removal, disposal and transport of waste; and

(iv) records in relation to any of the matters referred to in subparagraphs (i) to (iii) ; and

(v) appeals in relation to the refusal of approvals or issuing of certificates for the removal, disposal and transport of waste; and

(c) [Section 102 Subsection (2) amended by No. 56 of 2000, s. 52, Applied:14 Jul 2000] prohibiting or regulating the emission or disposal of things that are or contain pollutants and the use and operation of places that will or may cause or increase pollution of the environment; and

(d) the making and issuing of codes of practice and the approval or ratification of those codes by Parliament.

(3)  [Section 102 Subsection (3) amended by No. 83 of 1994, s. 4 ]Regulations under this section may prescribe fees for –

(a) the undertaking by the Board of an assessment of a proposed environmentally relevant activity; and

(b) the submission to the Board of a report on an environmental audit; and

(c) the issue of a determination by the Board conferring the protection of section 31 ; and

(d) the issue by the Director or an authorized officer of an emergency authorization; and

(e) the lodgment with the Board of a financial assurance; and

(f) .  .  .  .  .  .  .  .  

(g) any of the matters specified in subsection (2) (b) ; and

(h) any other action taken by the Board, the Director or an authorized officer in the performance or exercise of any function or power under this Act.

(3A)  [Section 102 Subsection (3A) inserted by No. 83 of 1994, s. 4 ]Regulations under this section may prescribe fees payable –

(a) in respect of an environmental improvement programme approved by the Board under section 40 ; and

(b) in respect of an environmental improvement programme taken, under clause 5 or 6 of Schedule 6 , to have been approved by the Board; and

(c) in respect of a permit granted under the Land Use Planning and Approvals Act 1993 ; and

(d) in respect of a permit taken, under clause 3 of Schedule 6 , to have been granted under the Land Use Planning and Approvals Act 1993 ; and

(e) in respect of an order made under section 26 of the State Policies and Projects Act 1993 in relation to activities for which the Board is responsible for the enforcement of conditions.

(4)  [Section 102 Subsection (4) amended by No. 83 of 1994, s. 4 ]Fees prescribed for any of the purposes or matters specified in subsection (3) or (3A) –

(a) may be calculated by reference to the extent of any environmental harm caused or likely to be caused by the activity to which the fee relates or by reference to such other factors as may be specified in the regulations; and

(b) may be set at differential levels to encourage improved environmental performance; and

(c) need not be determined by reference to the costs associated with the provision by the Board, the Director or an authorized officer of the relevant service.

(5)  [Section 102 Subsection (5) amended by No. 83 of 1994, s. 4 ]Fees prescribed in respect of an environmental improvement programme may be calculated by reference to the achievement of the objectives and timetable set out in the programme to the satisfaction of the Board.

(6)  [Section 102 Subsection (6) substituted by No. 83 of 1994, s. 4 ]Regulations under this section may provide that the fees payable –

(a) in respect of an environmental improvement programme referred to in subsection (3A) (a) , are payable on the approval of the environmental improvement programme by the Board under section 40 and on each anniversary of that approval; and

(b) in respect of an environmental improvement programme referred to in subsection (3A) (b) , are payable on the commencement of this Act and on each anniversary of the date on which the programme of works, in respect of which the environmental improvement programme is taken to have been approved, was approved by the Minister or the Director of Environmental Control; and

(c) in respect of a permit referred to in subsection (3A) (c) , are payable on the granting of the permit under the Land Use Planning and Approvals Act 1993 and on each anniversary of the granting of that permit; and

(d) in respect of a permit referred to in subsection (3A) (d) , are payable on each anniversary of that permit; and

(e) in respect of an order referred to in subsection (3A) (e) , are payable on the making of the order and on each anniversary of the making of that order.

(6A)  [Section 102 Subsection (6A) inserted by No. 83 of 1994, s. 4 ]Regulations under this section may make provision for or with respect to –

(a) the collection of fees by any person in relation to any act, matter or thing done or arising under this Act; and

(b) the remission of, or exemption from liability for, any such fees.

(7)  Regulations under this section may –

(a) authorize any act, matter or thing in relation to which the regulations may be made to be from time to time determined, applied or regulated by the Board or the Director; and

(b) be made subject to such conditions or be made so as to apply differently according to such factors as may be specified in the regulations or according to such limitations or restrictions, whether as to time or circumstance or otherwise, as may be so specified; and

(c) provide that a contravention of, or a failure to comply with, any of the regulations is an offence; and

(d) in respect of such an offence, provide for the imposition of a fine not exceeding 100 penalty units and, in the case of a continuing offence, a further fine not exceeding 10 penalty units for each day during which the offence continues.

(8)  Regulations under this section may contain provisions of a savings or transitional nature consequent on the enactment of this Act.

(9)  A provision referred to in subsection (8) may, if the regulations so provide, take effect from the commencement of this Act or a later date.

103.   Fees imposed by councils

[Section 103 Substituted by No. 56 of 2000, s. 53, Applied:14 Jul 2000] In accordance with the provisions of the Local Government Act 1993 , a council may impose fees in relation to any function or service carried out by the council under this Act.

104.   Provisions relating to commencement

If Division 7 of Part 3 commences before Division 1 of Part 2 , the following provisions apply:

(a) The amendments effected by this paragraph have been incorporated into the authorised version of the Environment Protection Act 1973 .

(b) references in Division 7 of Part 3 to the Board are to be read as references to the Director of Environmental Control.

105.   Repeal of Environment Protection Act 1973 , &c.

Subject to section 104 , the following Acts are repealed:

(a) Environment Protection Act 1973 ;

(b) Environment Protection Amendment Act 1989 ;

(c) Environment Protection Amendment Act 1991 ;

(d) Environment Protection Amendment Act 1993 ;

(e) Chlorofluorocarbons and other Ozone Depleting Substances Control Act 1988 .

106.   

The amendments effected by this section have been incorporated into the authorised version of the Local Government (Building and Miscellaneous Provisions) Act 1993 .

107.   Transitional provisions

Schedule 6 has effect.

108.   Review of Act

The Minister must ensure that this Act is reviewed within 10 years from the day on which it commenced.

109.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 –

(a) the administration of this Act is assigned to the Minister for Environment and Land Management; and

(b) the Department responsible to the Minister for Environment and Land Management in relation to the administration of this Act is the Department of Environment and Land Management.

SCHEDULE 1 - Objectives

Sections 8 , 12 and 28

PART 1 - Objectives of the resource Management and Planning System of Tasmania

1.   The objectives of the resource management and planning system of Tasmania are –

(a) to promote the sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity; and

(b) to provide for the fair, orderly and sustainable use and development of air, land and water; and

(c) to encourage public involvement in resource management and planning; and

(d) to facilitate economic development in accordance with the objectives set out in paragraphs (a) , (b) and (c) ; and

(e) to promote the sharing of responsibility for resource management and planning between the different spheres of Government, the community and industry in the State.

2.   In clause 1 (a) , sustainable development means managing the use, development and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic and cultural well-being and for their health and safety while –

(a) sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations; and

(b) safeguarding the life-supporting capacity of air, water, soil and ecosystems; and

(c) avoiding, remedying or mitigating any adverse effects of activities on the environment.

PART 2 - Objectives of the Environmental Management and Pollution Control System Established by this Act

3.   The objectives of the environmental management and pollution control system established by this Act are, in support of the objectives set out in Part 1 of this Schedule –

(a) to protect and enhance the quality of the Tasmanian environment; and

(b) to prevent environmental degradation and adverse risks to human and ecosystem health by promoting pollution prevention, clean production technology, reuse and recycling of materials and waste minimization programmes; and

(c) to regulate, reduce or eliminate the discharge of pollutants and hazardous substances to air, land or water consistent with maintaining environmental quality; and

(d) to allocate the costs of environmental protection and restoration equitably and in a manner that encourages responsible use of, and reduces harm to, the environment, with polluters bearing the appropriate share of the costs that arise from their activities; and

(e) to require persons engaging in polluting activities to make progressive environmental improvements, including reductions of pollution at source, as such improvements become practicable through technological and economic development; and

(f) to provide for the monitoring and reporting of environmental quality on a regular basis; and

(g) to control the generation, storage, collection, transportation, treatment and disposal of waste with a view to reducing, minimizing and, where practicable, eliminating harm to the environment; and

(h) to adopt a precautionary approach when assessing environmental risk to ensure that all aspects of environmental quality, including ecosystem sustainability and integrity and beneficial uses of the environment, are considered in assessing, and making decisions in relation to, the environment; and

(i) to facilitate the adoption and implementation of standards agreed upon by the State under inter-governmental arrangements for greater uniformity in environmental regulation; and

(j) to promote public education about the protection, restoration and enhancement of the environment; and

(k) to co-ordinate all activities as are necessary to protect, restore or improve the Tasmanian environment.

SCHEDULE 2 - Level 2 Activities

[Schedule 2 Amended by No. 83 of 1994, s. 4 ]

Sections 3 and 11

1.   Petroleum and Chemical

(a) Chemical Works: the conduct of works with a total processing capacity of 200 tonnes or more per year at which one or more of the following operations are carried out:

(i) manufacture (through chemical reaction) of any inorganic chemical, including sulphuric acid, inorganic fertilisers, sodium silicate, lime or other calcium compound;

(ii) manufacture (through chemical reaction) or processing of any organic chemical or chemical product or petrochemical, including the separation of such materials into different products by distillation or other means.

(b) Coal Processing Works: the conversion of coal into a gaseous liquid or solid product.

(c) Oil Refineries: the conduct of works at which crude petroleum oil or shale oil is refined, at which lubricating oil is produced or at which used oil is refined.

(d) Wood Preservation Works: the conduct of works for the treatment or preservation of timber by chemicals (including chemicals containing copper, chromium, arsenic or creosote).

2.   Manufacturing and Mineral Processing

(a) Cement Works: the conduct of works for the use of argillaceous and calcareous materials in the production of cement clinker or the grinding of cement clinker.

(b) Ceramic Works: the conduct of works for the production of any products such as bricks, tiles, pipes, pottery goods, refractories or glass that are manufactured or are capable of being manufactured in furnaces or kilns fired by any fuel, being works with a total capacity for the production of such products of 200 tonnes or more per year.

(c) Ferrous and Non-ferrous Metal Melting: the melting of ferrous or non-ferrous metal in a furnace or furnaces that alone or in aggregate have the capacity to melt 500 kilograms or more of metal in a working day of 8 hours.

(d) Metallurgical Works: the conduct of works at which ores are smelted or reduced to produce metal.

(e) Mineral Works: the conduct of works for processing mineral ores, sands or earths processing 1 000 tonnes or more per year or raw materials.

(f) Pulp and Paper Works: the conduct of works at which paper pulp or paper is manufactured or is capable of being manufactured.

(g) Wood Processing Works: the conduct of works (other than works at a builders supply yard or a home improvement centre) at which timber is sawn, cut, compressed, milled or machined, being works with a total production of 1 000 cubic metres or more per year.

(h) Textile Bleaching and Dyeing Factories: the works involving bleaching, dyeing or printing of yarns, threads, fabrics or other textiles and capable of consuming more than 100 kilolitres of water in a working day of 8 hours.

(i) [Schedule 2 Amended by No. 56 of 2000, s. 54, Applied:14 Jul 2000] Woodchip Mills: works involving processing of trees or parts of trees to form woodchips which have a production capacity of 1 000 tonnes or more per year, but excluding:

(i) mobile woodchippers operating in forest harvest areas; and

(ii) mobile woodchippers which are moved regularly from sawmill to sawmill to chip sawmill residues produced by those mills; and

(iii) woodchip mills or mobile woodchippers which are permanently or semi-permanently located at a sawmill and used solely for the processing of sawmill residues produced by the sawmill at which the woodchipper is located.

3.   Waste Treatment and Disposal

(a) Sewage Treatment Works: the conduct of sewage treatment works that involve the discharge of treated or untreated sewage or septic tank effluent to land or water, being works with a design capacity to treat an average dry-weather flow of 100 kilolitres or more per day of sewage.

(b) Waste Depots: the conduct depots for the reception, storage, treatment or disposal of waste other than –

(i) temporary storage at the place at which the waste is produced while awaiting transport to another place; or

(ii) storage, treatment or disposal of domestic waste at residential premises; or

(iii) waste transfer stations –

and which are designed to receive, or are likely to receive, 100 tonnes or more of waste per year.

(c) [Schedule 2 Amended by No. 56 of 2000, s. 54, Applied:14 Jul 2000] Waste Transport Business: the collection or transport and disposal for fee or reward of any controlled waste or the transport, whether or not for fee or reward, of any controlled waste to Tasmania from another State or a Territory or from Tasmania to another State or a Territory.

4.   Food Production and Animal and Plant Product Processing

(a) Abattoirs or Slaughterhouses: the conduct of meat premises within the meaning of the Meat Hygiene Act 1985 for producing 100 tonnes or more of products per year.

(b) Breweries and Distilleries: the conduct of works for the production of beer by infusion, boiling or fermentation, or spirits by distillation, being works with a capacity to consume 100 kilolitres or more of water in a working day of 8 hours.

(c) Fish Processing: the conduct of works for scaling, gilling, gutting, filleting, freezing, chilling, packing or otherwise processing fish for sale and in which 100 tonnes or more of product per year are produced.

(d) Milk Processing Works: the conduct of works at which milk is separated, evaporated or otherwise processed for the manufacture of milk powder, cheese, butter, ice cream or other similar dairy products, being works with a processing capacity of 3 000 litres or more of whole milk, skimmed milk or cream in an 8 hour working day.

(e) Produce Processing Works: the conduct of works for the processing of vegetables, seed, grain, fruit or any other agricultural crop material by deep fat frying or roasting or boiling or drying through application of heat, being works with a processing capacity of 50 kilograms or more per hour.

(f) Rendering or Fat Extraction Works: the conduct of works at which animal, fish or grease trap wastes or other matter is processed or is capable of being processed by rendering or extraction or by some other means to produce tallow or fat or their derivatives or proteinaceous matter, being works with a total processing capacity of 50 kilograms or more per hour where a continuous cooker is used, or 50 kilograms per batch where a batch cooker is used.

(g) Wool Scourers, Tanneries or Fellmongeries: the conduct of works for the scouring of wool or the commercial preservation or treatment or drying of animal skins or hides and producing 100 tonnes or more per year of product.

5.   Extractive Industries

(a) Quarries: the extraction of any rock or gravel and producing 5 000 cubic metres or more of rock or gravel per year.

(b) Extractive Pits: the extraction of sand or clay and producing 5 000 cubic metres or more of product per year.

(c) Mines: the extraction of any minerals and producing 1 000 tonnes or more of minerals per year.

6.   Materials Handling

(a) Crushing, Grinding or Milling: processing (by crushing, grinding, milling or separating into different sizes by sieving, air elutriation or in any other manner) of –

(i) chemicals or rubber at a rate of 200 tonnes or more per year; or

(ii) rock, ores or minerals at a rate in excess of 1 000 cubic metres per year.

(b) Coal Handling and Washing: the handling or washing of coal or carbonaceous material by any means of facilities with a total handling or washing capacity of 100 tonnes or more per day.

7.   Other

(a) Fuel Burning: any process or combination of processes involving the use of fuel burning equipment or incineration and where the equipment alone or in aggregate is capable of burning combustible matter at a rate of one tonne or more per hour.

(b) Racing or Testing Venues: the conduct of facilities designed and used for competitions or speed or performance trials involving motor vehicles or motor-driven boats, and where domestic residences are, or land zoned for residential use is, within 500 metres of the boundary of the facility.

(c) Laundries: premises used primarily in providing laundering or dry-cleaning services and capable of consuming more than 100 kilolitres of water in a working day of 8 hours.

(d) Pre-mix Bitumen Plants: works in which crushed or ground rock aggregates are mixed with bituminous or asphaltic materials for the purpose of producing road-building mixtures and capable of producing more than 1 000 tonnes of material per year.

(e) [Schedule 2 Amended by No. 56 of 2000, s. 54, Applied:14 Jul 2000] Disposing of Wastes in Internal Marine Waters: the deposition of wastes (including dredged spoils) in internal marine waters.

SCHEDULE 3 - Provisions with respect to Membership of the Board

Section 13

1.   Interpretation

In this Schedule, appointed member means a member of the Board referred to in section 13 (1) (c) , (d) or (e) .

2.   Term of appointment

An appointed member is to be appointed for such term, not exceeding 3 years, as is specified in the member's instrument of appointment and, if otherwise qualified, is eligible for re-appointment for not more than one additional term.

3.   Provisions requiring devotion of whole of time to other duties

Where, by or under any Act, provision is made requiring the holder of an office to devote the whole of his or her time to the duties of office under that Act, that provision does not operate to disqualify that person from holding that office and also the office of a member of the Board.

4.   Terms and conditions of appointment

(1) Subject to subclause (2) , a member of the Board is entitled to be paid such remuneration and allowances as the Governor may from time to time determine.

(2) A member of the Board who is employed under the Tasmanian State Service Act 1984 is not entitled to remuneration under subclause (1) except with the approval of the Minister administering that Act.

(3) An appointed member holds office on such terms and conditions not provided for in this Act as are determined by the Governor.

5.   Disclosure of interests

(1) If a member of the Board has or acquires an interest (whether pecuniary or otherwise) that would conflict with the proper performance of the member's functions in relation to a matter being considered or about to be considered by the Board, the member must disclose the nature of that interest at a meeting of the Board.

(2) A disclosure under subclause (1) is to be recorded in the minutes of the meeting of the Board and the member must not, unless the Board otherwise determines –

(a) be present during any deliberation of the Board with respect to that matter; or

(b) take part in any decision of the Board with respect to that matter.

(3) For the purpose of making a determination by the Board under subclause (2) in relation to a member who has made a disclosure under subclause (1) , a member who has a direct or indirect pecuniary interest in the matter to which the disclosure relates must not take part in the making by the Board of the determination.

6.   Deputies of members

(1) The Governor may appoint a deputy of a member of the Board.

(2) The deputy of –

(a) the member referred to in section 13 (1) (a) must be nominated by the Secretary of the Department; and

(b) the member referred to in section 13 (1) (b) must be nominated by the Director; and

(c) a member referred to in section 13 (1) (c) , (d) or (e) must be a person who possesses environmental management experience nominated by the Minister.

(3) If a member of the Board is unable for any reason to perform the duties of a member, the member's deputy may perform those duties and, when doing so, is deemed to be a member.

(4) A deputy member of the Board holds office for such term, not exceeding 3 years, and on such conditions, as are specified in his or her instrument of appointment.

7.   Resignation

An appointed member may resign by signed notice given to the Governor.

8.   Termination of appointment

(1) The Governor may terminate the appointment of an appointed member if the member –

(a) becomes mentally or physically incapable of performing satisfactorily the duties of office; or

(b) is convicted in Tasmania, or elsewhere, of an offence punishable by imprisonment for 2 years or longer; or

(c) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration or estate for their benefit; or

(d) fails, without reasonable excuse, to comply with clause 5 .

(2) An appointed member may be removed from office only in accordance with this clause.

9.   Validity of proceedings, &c.

All acts and proceedings of the Board or of any person acting pursuant to any direction of the Board are, notwithstanding the subsequent discovery of any defect in the appointment of any member of the Board or that any person was disqualified from acting as, or incapable of being, a member of the Board, as valid as if the member had been duly appointed and was qualified to act as, or capable of being, a member, and as if the Board had been fully constituted.

10.   Presumptions

In any proceedings by or against the Board, unless evidence is given to the contrary, no proof is required of –

(a) the constitution of the Board; or

(b) any resolution of the Board; or

(c) the appointment of any member of the Board; or

(d) the presence of a quorum at any meeting of the Board.

SCHEDULE 4 - Provisions with Respect to Meetings of the Board

Section 13

1.   Convening of meetings of the Board

Meetings of the Board may be convened by the chairperson of the Board or by any 2 members of the Board.

2.   Procedure at meetings

(1) [Schedule 4 Amended by No. 56 of 2000, s. 55, Applied:14 Jul 2000] Four members of the Board of whom one must be the chairperson or deputy chairperson form a quorum at any duly convened meeting of the Board.

(2) Any duly convened meeting of the Board at which a quorum is present is competent to transact any business of the Board.

(3) Questions arising at a meeting of the Board are to be determined by a majority of votes of the members of the Board present and voting.

(4) [Schedule 4 Amended by No. 56 of 2000, s. 55, Applied:14 Jul 2000] In the case of an equality of votes, the chairperson of the Board or, in the absence of the chairperson, the deputy chairperson of the Board has a casting vote.

3.   General procedure

The procedure for the calling of, and for the conduct of business at, meetings of the Board is, subject to any procedure that is specified in this Act, to be as determined by the Board.

SCHEDULE 5 - Controlled Substances

Section 3 and Part 6

SCHEDULE 5A - Membership, meetings and proceedings of Panel

[Schedule 5A Inserted by No. 56 of 2000, s. 56, Applied:14 Jul 2000]

Section 96A

1.   Disclosure of interests

(1) If a member of the Panel has or acquires an interest (whether pecuniary or otherwise) that would or may conflict with the proper performance of the member's functions in relation to a matter being considered or about to be considered by the Panel, the member must disclose the nature of that interest to the Panel as soon as practicable after becoming aware of the conflict or possible conflict, and no later than at the next meeting of the Panel.

(2) A disclosure under subclause (1) is to be recorded in the minutes of the meeting of the Panel and the member must not, unless the Panel otherwise determines –

(a) be present during any deliberation of the Panel with respect to that matter; or

(b) take part in any decision of the Panel with respect to that matter.

(3) For the purpose of making a determination by the Panel under subclause (2) in relation to a member who has made a disclosure under subclause (1) , a member who has a direct or indirect pecuniary interest in the matter to which the disclosure relates must not take part in the making by the Panel of the determination.

2.   Deputies of members

(1) For the purposes of this clause, a member of the Panel is absent if he or she –

(a) is absent from duty; or

(b) is otherwise unable to perform the functions of the office of member of the Panel.

(2) If the chairperson of the Panel is absent, a person acting or entitled to act in the position of chairperson of the Resource Planning and Development Commission is taken to be the chairperson of the Panel.

(3) If a member of the Panel other than the chairperson is absent, that member's deputy is taken to be a member of the Panel.

3.   Validity of proceedings, &c.

All acts and proceedings of the Panel or of any person acting pursuant to any direction of the Panel are, despite the subsequent discovery that any person was disqualified from acting as, or incapable of being, a member of the Panel, as valid as if the member was qualified to act as, or capable of being, a member and as if the Panel had been fully constituted.

4.   Presumptions

In any proceedings by or against the Panel, unless evidence is given to the contrary, no proof is required of –

(a) the constitution of the Panel; or

(b) any resolution of the Panel; or

(c) the presence of a quorum at any meeting of the Panel.

5.   Convening of meetings of Panel

Meetings of the Panel may be convened by the chairperson of the Panel or by any 2 members of the Panel.

6.   Procedure at meetings

(1) Three members of the Panel of whom one must be the chairperson form a quorum at any duly convened meeting of the Panel.

(2) Any duly convened meeting of the Panel at which a quorum is present is competent to transact any business of the Panel.

(3) Questions arising at a meeting of the Panel are to be determined by a majority of votes of the members of the Panel present and voting.

(4) In the case of an equality of votes, the chairperson of the Panel has a casting vote.

7.   General procedure

The procedure for the calling of, and for the conduct of business at, meetings of the Panel is, subject to this Act, to be as determined by the Panel.

SCHEDULE 6 - Transitional and Miscellaneous Provisions

Section 107

1.   Interpretation

In this Schedule –

commencement day means the day on which Division 1 of Part 2 commences;

scheduled premises has the same meaning as in the repealed Act ;

undetermined application means an application which has not been determined under the repealed Act immediately before the commencement day.

2.   Permits

Where a planning approval was granted under the Local Government Act 1962 and was in force immediately before the commencement of the first of the provisions of this Act to commence, a permit under the Land Use Planning and Approvals Act 1993 is, on that commencement, taken to have been granted on the terms and conditions (if any) specified in the approval.

3.   Registrations and licences

(1) Where immediately before the commencement day scheduled premises were licensed, or a person was registered in respect of scheduled premises, under the repealed Act , a permit under the Land Use Planning and Approvals Act 1993 is, on that day, taken to have been granted in respect of the scheduled premises on the terms and conditions (if any) specified in the registration or licence, and subject to any environmental management plan incorporated, or referred to, in the registration or licence.

(2) For the purposes of this Act the anniversary of a permit referred to in subsection (1) is to be the anniversary of the licence or registration.

(3) If there is an inconsistency between a condition taken to have been continued in a permit pursuant to subclause (1) and any other condition of the permit, the first-mentioned condition prevails.

(4) A reference to the Director of Environmental Control in a condition taken to have been continued in a permit pursuant to subclause (1) is taken to be –

(a) in the case of a level 2 activity or premises which were declared to be scheduled premises under section 22A of the repealed Act , a reference to the Director of Environmental Management; and

(b) in any other case, a reference to the relevant council.

4.   Enforcement of terms and conditions of registrations and licences

(1) On and after the commencement day, the terms and conditions of a permit referred to in clause 3 (1) may be enforced as if the terms and conditions were included in the permit under this Act.

(2) The powers conferred by this Act on a council cannot be exercised by that council in respect of an activity the subject of a permit referred to in clause 3 (1) where that activity is a level 2 activity.

5.   Ministerial exemptions

(1) Where under the repealed Act the Minister has exempted any person from the operation of a section of that Act, and that exemption is in force immediately before the commencement of Division 7 of Part 3 of this Act, an environmental improvement programme is, on that commencement, taken to have been approved by the Board under this Act on the terms and conditions of any proposal in relation to which the Minister is satisfied as referred to in section 17A (3) of the repealed Act .

(2) Where a proposal under section 17A (1) of the repealed Act has not been submitted to the Minister, or where the Minister is not satisfied as referred to in section 17A (3) of the repealed Act , before the commencement of Division 7 of Part 3 of this Act, a person who has been exempted by the Minister from the operation of a section of the repealed Act must, within 3 months after the commencement of Division 7 of Part 3 of this Act, provide the Board with a draft environmental improvement programme in accordance with section 39 .

6.   Programmes relating to environmental management

Where a programme relating to the environmental management of scheduled premises has been approved by the Director of Environmental Control under the repealed Act and is in force immediately before the commencement of Division 7 of Part 3 of this Act, an environmental improvement programme is, subject to the consent of the operator of the premises, taken to have been approved by the Board under this Act on the commencement of this provision on the terms and conditions of the programme approved by the Director of Environmental Control.

7.   Waste transport licences

On and after the commencement day, a licence to transport waste issued to a person under the repealed Act and in force immediately before that day is taken to be an environment protection notice, containing the terms and conditions specified in the licence, served on that person under this Act.

8.   Regulations

The regulations made under the repealed Act and in force immediately before the commencement day –

(a) [Schedule 6 Amended by No. 56 of 2000, s. 57, Applied:14 Jul 2000] continue, on and after that day, to be in force as if they were made under this Act unless they are inconsistent with a State Policy or an environment protection policy; and

(b) are, on and after that day, taken to have been made for the purposes of this Act; and

(c) may, after that day, be altered or rescinded under this Act.

9.   Authorized officers

A person, other than an employee of a council, holding office as an authorized officer under the repealed Act immediately before the commencement day is, on that day, taken to be appointed as an authorized officer under this Act.

10.   Council officers

An employee of a council holding office as an authorized officer under the repealed Act immediately before the commencement day is, on that day, taken to be appointed as a council officer under this Act.

11.   Delegations

A delegation by the Director of Environmental Control under the repealed Act and in force immediately before the commencement day is, on and after that day, taken to be a delegation by the Board under this Act.

12.   Environment Protection Advisory Council

(1) The Environment Protection Advisory Council as constituted by the repealed Act immediately before the commencement day is, on and after that day, taken to be a committee established by the Board under this Act.

(2) Any committee appointed by the Environment Protection Advisory Council under the repealed Act and in existence immediately before the commencement day is, on and after that day, taken to be a sub-committee of the committee referred to in subclause (1) .

13.   Notice to reduce or eliminate pollution or noise

A notice to reduce or eliminate pollution or noise served on a person and in force immediately before the commencement day is, on and after that day, taken to be an environment protection notice issued and served on that person and subject to the terms and conditions specified in the first-mentioned notice.

14.   Rehabilitation of land and vegetation

(1) Where immediately before the commencement day a person is under an obligation under section 20 (2) of the repealed Act to comply with conditions attached to a licence issued under that Act, an environment protection notice containing the conditions attached to the licence is, on that day, taken to have been issued and served on the person.

(2) The environment protection notice referred to in subclause (1) has effect for a period of 2 years after the relevant operation has ceased or for such period as is necessary to ensure that the relevant land is as free from erosion as is practicable and rehabilitation of the land is completed, whichever period is the shorter.

(3) A notice in force under section 20 (3) of the repealed Act immediately before the commencement day is, on and after that day, taken to be an environment protection notice issued and served on the person on whom the first-mentioned notice was served and is subject to the directions specified in that notice.

15.   Licences

On and after the commencement day, an undetermined application for a licence in respect of scheduled premises is to be dealt with as if this Act had not been enacted.

16.   Approval in change of operation of scheduled premises

On and after the commencement day, an undetermined application for the approval of the Director of Environmental Control to a change in the operation of scheduled premises is to be dealt with as if this Act had not been enacted.

17.   Transfer of licences

On and after the commencement day, an undetermined application for a transfer of a licence is to be dealt with as if this Act had not been enacted.

18.   Other applications

On and after the commencement day, an undetermined application in respect of any matter not referred to in clause 15 , 16 or 17 is to be dealt with as if this Act had not been enacted.

19.   Fees

On and after the commencement day, section 30 of the repealed Act applies as if that Act had not been repealed to a licence granted as a result of an application referred to in clause 15 .

20.   Crown premises

Where under section 34 of the repealed Act an officer has been nominated to apply for and hold a licence in respect of scheduled premises and that nomination is in force immediately before the commencement day, that officer is, on and after that day, taken to be the person to whom a permit is granted in respect of those premises.

21.   Level 2 activities which are not scheduled premises under repealed Act

Where immediately before the commencement day a person is undertaking a level 2 activity which was not a scheduled premises under the repealed Act , that person may, on and after that day, continue to undertake that activity until an environment protection notice is issued and served on that person under this Act.

22.   Appeals

(1) Where on or after the commencement day an undetermined application is dealt with as if this Act had not been enacted, a person may appeal under the repealed Act against the determination of that application as if this Act had not been enacted.

(2) An appeal instituted under the repealed Act and not finally decided by the Appeal Tribunal before the commencement day is to be dealt with as if this Act had not been enacted.

(3) Where a person had a right to appeal under the repealed Act and did not institute an appeal within the 14 day period specified in the repealed Act , that person may, within 14 days from the commencement day, institute an appeal as if this Act had not been enacted.

(4) Where a right to appeal exists under the repealed Act and an application to extend the time in which to institute an appeal under that Act is made within 6 months after the commencement day, any appeal instituted as a result of that application being granted is to be dealt with as if this Act had not been enacted.

23.   Analysts

(1) A person holding office as an analyst under the repealed Act immediately before the commencement day is, on that day, taken to be appointed as an analyst under this Act.

(2) A certificate of analysis given by an analyst under the repealed Act and in force immediately before the commencement day is, on and after that day, taken to be a certificate executed by a person appointed as an analyst under this Act.

24.   Work to be done

Any work ordered or required to be done under the repealed Act before the commencement day but not commenced or completed before that day is, on and after that day, to be commenced or completed in accordance with the order or requirement.

25.   Permissions, approvals and consent

Any permission, approval and consent given under the repealed Act and in force before the commencement day continues, on and after that day, to be in force until withdrawn, expired or revoked.

26.   Property and rights

On the commencement day, the rights of the Director of Environmental Control vest in the Board and the liabilities and obligations of the Director of Environmental Control become the liabilities and obligations of the Board.

27.   Contracts and agreements

On and after the commencement day, any contract or agreement entered into by the Director of Environmental Control and in force immediately before that day is taken to be a contract or agreement entered into by the Board.

28.   Legal proceedings, &c.

(1) On and after the commencement day, legal proceedings instituted by or against the Director of Environmental Control before, and pending immediately before, the commencement day may be continued by or against the Board.

(2) Any legal or other proceedings which may, before the commencement day, have been instituted or continued by or against the Director of Environmental Control may, on and after that day, be instituted or continued by or against the Board.

(3) On and after the commencement day, a judgment or order of a court obtained in legal proceedings by or against the Director of Environmental Control may be enforced by or against the Board.

29.   References to Director of Environmental Control

On and after the commencement day –

(a) except as provided in clause 3 (4) , a reference to the Director of Environmental Control in any law, instrument or document is taken to be a reference to the Board or to the chairperson of the Board, as the case may require; and

(b) a document addressed to and purporting to be served on the Director of Environmental Control is taken to be served on the Board.

30.   Acts, &c., done by or to Director of Environmental Control

All acts, matters and things done or omitted to be done by, or done or suffered in relation to, the Director of Environmental Control before the commencement day have, on and after that day, the same force and effect as if they had been done or omitted to be done by, or done or suffered in relation to, the Board.

31.   References to Environment Protection Act 1973

On and after the commencement day –

(a) a reference in any Act to any section, Division, Part or Schedule of the repealed Act is taken to be a reference to the equivalent provision, if any, in the Environmental Management and Pollution Control Act 1994 ; and

(b) a reference in any law, instrument or document to the Environment Protection Act 1973 is taken to be a reference to the Environmental Management and Pollution Control Act 1994 .