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ENVIRONMENTAL PROTECTION ACT 1994 - SECT 505
Restraint of contraventions of Act etc.
505 Restraint of contraventions of Act etc.
(1) A proceeding may be brought in the Court for an order to remedy or
restrain an offence against this Act, or a threatened or anticipated offence
against this Act, by— (a) the Minister; or
(b) the administering authority;
or
(c) someone whose interests are affected by the subject matter of the
proceeding; or
(d) someone else with the leave of the Court (even though the
person does not have a proprietary, material, financial or special interest in
the subject matter of the proceeding).
(2) In deciding whether or not to
grant leave to a person under subsection (1) (d) , the Court— (a) must be
satisfied— (i) environmental harm has been or is likely to be caused; and
(ii) the proceeding would not be an abuse of the process of the Court; and
(iii) there is a real or significant likelihood that the requirements for the
making of an order under this section would be satisfied; and
(iv) it is in
the public interest that the proceeding should be brought; and
(v) the person
has given written notice to the Minister or, if the administering authority is
a local government, the administering executive, asking the Minister or
authority to bring a proceeding under this section and the Minister or
executive has failed to act within a time that is a reasonable time in the
circumstances; and
(vi) the person is able to adequately represent the public
interest in the conduct of the proceeding; and
(b) may have regard to other
matters the Court considers relevant to the person’s standing to bring and
maintain the proceeding.
(3) However, the Court must not refuse to grant
leave merely because the person’s interest in the subject matter of the
proceeding is no different from someone else’s interest in the subject
matter.
(4) The Court may grant leave subject to conditions, including, for
example— (a) a condition requiring the person to give security for the
payment of costs of the proceeding that may be awarded against the person; or
(b) a condition requiring the person to give an undertaking about damages.
(5) If the Court is satisfied— (a) an offence against this Act has been
committed (whether or not it has been prosecuted); or
(b) an offence against
this Act will be committed unless restrained;
the Court may make the orders it
considers appropriate to remedy or restrain the offence.
(6) An order— (a)
may direct the defendant— (i) to stop an activity that is or will be a
contravention of this Act; or
(ii) to do anything required to comply with, or
to cease a contravention of, this Act; and
(b) may be in the terms the Court
considers appropriate to secure compliance with this Act; and
(c) must
specify the time by which the order is to be complied with; and
(d) may
include an order for the defendant to pay the costs reasonably incurred by the
administering authority in monitoring the defendant’s actions in relation to
the offence.
(7) The Court’s power to make an order to stop an activity may
be exercised whether or not— (a) it appears to the Court the person against
whom the order is made intends to engage, or to continue to engage, in the
activity; or
(b) the person has previously engaged in an activity of that
kind; or
(c) there is danger of substantial damage to the environment if the
person engages, or continues to engage, in the activity.
(8) The Court’s
power to make an order to do anything may be exercised whether or not— (a)
it appears to the Court the person against whom the order is made intends to
fail, or to continue to fail, to do the thing; or
(b) the person has
previously failed to do a thing of that kind; or
(c) there is danger of
substantial damage to the environment if the person fails, or continues to
fail, to do the thing.
(9) Without limiting the powers of the Court, the
Court may make an order— (a) restraining the use of plant or equipment or a
place; or
(b) requiring the demolition or removal of plant or equipment, a
structure or another thing; or
(c) requiring the rehabilitation or
restoration of the environment.
(10) The Court must order a plaintiff to pay
costs if the Court is satisfied the proceeding was brought for obstruction or
delay.
(11) The Court’s power under this section is in addition to its
other powers.
(12) A person who contravenes an order commits an offence
against this Act. Penalty— Maximum penalty for subsection (12) —3,000
penalty units or 2 years imprisonment.
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