Primary Industry Activities Protection Act 1995

Primary Industry Activities Protection Act 1995

An Act to protect persons engaged in primary industry by limiting the operation of the common law of nuisance in respect of certain activities that are incidental to efficient and commercially viable primary production

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:

1.   Short title

This Act may be cited as the Primary Industry Activities Protection Act 1995 .

2.   Commencement

This Act commences on the day on which it receives the Royal Assent.

3.   Interpretation

(1)  In this Act –

[Section 3 Subsection (1) amended by No. 24 of 2016, s. 4, Applied:23 Aug 2016] farm means an area of land that –

(a) is primarily being used for, or in connection with, primary industry; and

(b) is not Crown land, or land owned by the Forestry corporation, that is used for planting trees, establishing forests or growing or harvesting timber; and

(c) is being used, or being prepared for use, by the occupier of the land as a primary production business within the meaning of the Income Tax Assessment Act 1997 of the Commonwealth;

[Section 3 Subsection (1) amended by No. 24 of 2016, s. 4, Applied:23 Aug 2016] Forestry corporation has the same meaning as in the Forest Management Act 2013 ;

nuisance means a public or private nuisance actionable at common law;

primary industry includes the following:

(a) planting, growing or harvesting crops;

(b) breeding, rearing or managing livestock;

(c) agisting livestock;

(d) obtaining dairy, wool, eggs or other produce from livestock;

(e) obtaining juice, seeds or other produce from crops;

(f) [Section 3 Subsection (1) amended by No. 24 of 2016, s. 4, Applied:23 Aug 2016] planting trees, establishing forests or growing or harvesting timber;

primary industry activity means an activity which –

(a) [Section 3 Subsection (1) amended by No. 24 of 2016, s. 4, Applied:23 Aug 2016]

(b) is carried out for, or in connection with, primary industry; and

(c) [Section 3 Subsection (1) amended by No. 24 of 2016, s. 4, Applied:23 Aug 2016] does not contravene, or fail to comply with, an enactment of the State or Commonwealth or a council by-law;

[Section 3 Subsection (1) amended by No. 24 of 2016, s. 4, Applied:23 Aug 2016] timber has the same meaning as in the Forest Practices Act 1985 .

(2)  [Section 3 Subsection (2) omitted by No. 24 of 2016, s. 4, Applied:23 Aug 2016] .  .  .  .  .  .  .  .  

4.   Primary industry activity does not constitute a nuisance in certain circumstances

[Section 4 Substituted by No. 24 of 2016, s. 5, Applied:23 Aug 2016] A primary industry activity that is carried out on, in, immediately over or under an area of land does not constitute a nuisance if –

(a) the area of land is on a farm; and

(b) the area of land –

(i) is within a zone, designated to the land under the Land Use Planning and Approvals Act 1993 , that enables the land to be used for the purposes of primary industry; and

(ii) has been within that zone for a continuous period, beginning before the activity is carried out, of at least one year –

or the primary industry activity is a use that, despite the zone designated to the area of land, is authorised under the Land Use Planning and Approvals Act 1993 and the use has been lawful for a continuous period, beginning before the activity is carried out, of at least one year; and

(c) the activity did not constitute, or would not have constituted, a nuisance if it had been carried out on that area of land at the beginning of the period referred to in paragraph (b) ; and

(d) the activity is not being improperly or negligently carried out.

5.   Limitation on power of courts in respect of findings of nuisance

(1)  If in any proceedings a court finds that a primary industry activity carried out by one party to the proceedings constitutes a nuisance, the court must not order the complete cessation of that activity if the court is satisfied that, by making some other order for the management, modification or diminution of the activity reasonably consistent with efficient and commercially viable primary production, the court could reasonably ensure that any continuation of the activity would be unlikely to significantly disturb the other party to the proceedings.

(2)  Subsection (1) does not limit or otherwise prejudice the power of a court to make any other order it thinks fit in respect of the nuisance, including any order as to damages or costs.

6.   Act does not derogate from other Acts

Nothing in this Act derogates from the operation or effect of any other Act.

7.   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 Primary Industry and Fisheries; and

(b) the Department responsible to the Minister for Primary Industry and Fisheries in relation to the administration of this Act is the Department of Primary Industry and Fisheries.