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TASMANIA
__________
ENVIRONMENTAL MANAGEMENT AND
POLLUTION CONTROL AMENDMENT BILL 2007
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
PART 2 - ENVIRONMENTAL MANAGEMENT AND POLLUTION
CONTROL ACT 1994 AMENDED
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 9 amended (Interaction with other Acts)
6. Section 20B inserted
20B. Council may ask Board to exercise powers
7. Section 23A amended (General environmental duty)
8. Section 24 amended (Assessment of permissible level 1
activities)
9. Section 25 amended (Assessment of permissible level 2
activities)
10. Section 27 amended (Assessment of activities which do not
require a permit)
11. Part 3, Division 1A inserted
Division 1A - Assessment of activities
27A. Classes of assessment
27B. Notice of intent
[Bill 46]-IX
27C. Board to advise of proposed class of assessment
27D. Periods for provision of guidance under
section 74(4)
27E. Board may require further information
27F. Case for assessment to be lodged within 12 months
27G. Periods for advertising of applications and proposals
27H. Period for completion of assessment
27I. Additional information
27J. Extension of periods
27K. Calculation of number of days
12. Section 32 amended (Notification of incidents)
13. Section 35 amended (Financial assurance to secure compliance
with Act)
14. Section 44 amended (Environment protection notices)
15. Section 46 amended (Registration of environment protection
notices)
16. Section 48 amended (Civil enforcement proceedings)
17. Section 53 amended (Offence of causing environmental
nuisance)
18. Section 53A inserted
53A. Evidentiary provision for environmental nuisance
19. Section 55A amended (General environmental duty defence)
20. Section 63 amended (Orders by court against offenders)
21. Section 65 inserted
65. Recovery of other costs associated with prosecutions
22. Section 67 amended (Service and acceptance of an
environmental infringement notice)
23. Part 6 repealed
24. Section 92 amended (Powers of authorized officers and council
officers)
25. Sections 92A and 92B inserted
92A. Failure to provide name or address
92B. Power of arrest
26. Section 100A inserted
100A. Listening Devices Act 1991 not to apply
27. Schedule 2 amended (Level 2 Activities)
28. Schedule 5 repealed
2
PART 3 - APPROVALS (DEADLINES) ACT 1993 AMENDED
29. Principal Act
30. Schedule 1 amended (Approval Time Limits)
3
4
ENVIRONMENTAL MANAGEMENT AND
POLLUTION CONTROL AMENDMENT BILL 2007
(Brought in by Minister for Tourism, Arts and the
Environment, the Honourable Paula Catherine Wriedt)
A BILL FOR
An Act to amend the Environmental Management and
Pollution Control Act 1994
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 Amendment
Act 2007.
2. Commencement
(1) Except as provided in this section, this Act
commences on the day on which this Act
receives the Royal Assent.
(2) Part 3 commences 6 months after the day on
which this Act receives the Royal Assent.
[Bill 46] 5
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s. 3 Part 2 - Environmental Management and Pollution Control Act 1994
Amended
PART 2 - ENVIRONMENTAL MANAGEMENT AND
POLLUTION CONTROL ACT 1994 AMENDED
3. Principal Act
In this Part, the Environmental Management and
Pollution Control Act 1994* is referred to as the
Principal Act.
4. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended as
follows:
(a) by omitting the definition of
"authorization";
(b) by inserting the following definition after
the definition of "business":
"clean fill" means fill, including soil,
rock, concrete, bituminised
pavement and similar non-
putrescible and non-water-soluble
material, that is not contaminated
by other waste and that does not
contain contaminant levels
exceeding limits set by the
Director;
*No. 44 of 1994
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(c) by omitting the definitions of "controlled
activity", "controlled article" and
"controlled substance";
(d) by inserting "existing or proposed" after
"means an" in the definition of
"environmentally relevant activity";
(e) by omitting the definition of "general
authorization";
(f) by omitting the definitions of "individual
authorization", "internal marine waters"
and "interstate authorization";
(g) by inserting the following definition after
the definition of "person in charge":
"place" includes residential premises
as defined in section 53(6);
(h) by omitting the definition of "recognized
interstate authorization";
(i) by inserting the following definition after
the definition of "water":
"waters within the limits of the
State" means all tidal waters
adjacent to the State other than
waters in respect of which a
permit may be required under
sections 10A, 10B, 10C or 10D of
the Environment Protection (Sea
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Amended
Dumping) Act 1981 of the
Commonwealth;
5. Section 9 amended (Interaction with other Acts)
Section 9(2) of the Principal Act is amended by
omitting "the Environment Protection (Sea
Dumping) Act 1987 or".
6. Section 20B inserted
After section 20A of the Principal Act, the
following section is inserted in Division 1:
20B. Council may ask Board to exercise powers
A council may ask the Board, in respect
of an activity that is not a level 2 activity
or a level 3 activity, to exercise any of
the Board's powers relating to the
following:
(a) an environmental audit;
(b) an environmental improvement
programme;
(c) an environmental agreement;
(d) lodgment of a financial
assurance.
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7. Section 23A amended (General environmental duty)
Section 23A of the Principal Act is amended as
follows:
(a) by omitting from subsection (2)(a)
"potential" and substituting "likely";
(b) by omitting from subsection (4)
"section 102(2)(d)" and substituting "the
regulations";
(c) by inserting in subsection (4) "in respect
of the activity" after "compliance with
the general environmental duty".
8. Section 24 amended (Assessment of permissible
level 1 activities)
Section 24 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "58 (2)
of that Act" and substituting "58(2) of
the Land Use Planning and Approvals
Act 1993";
(b) by inserting the following subsections
after subsection (1):
(1A) A requirement by the Director
under subsection (1) must be
made -
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(a) in the case of an
application under section
43A of the Land Use
Planning and Approvals
Act 1993, within 28 days
after the date of lodgment
of the application; or
(b) in the case of an
application under section
57(1) of that Act, before
the expiry of the period
allowed for
representations under
subsection (5) of that
section; or
(c) in the case of an
application under section
58 of that Act, within 14
days after the date of
lodgment of the
application.
(1B) Where an application under
section 43A of the Land Use
Planning and Approvals Act 1993
is referred to the Board under
subsection (1), the Board must
deal with the application in
accordance with section 25A of
this Act.
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(c) by omitting from subsection (3) ", (8),
(8A), (8B) and (8C)" and substituting
"and (8)";
(d) by omitting from subsection (3) "the
application" and substituting "an
application under section 57 or 58 of the
Land Use Planning and Approvals Act
1993";
(e) by omitting subsection (4) and
substituting the following subsections:
(4) An activity in respect of which an
application is referred to the
Board under subsection (1) and
which is assessed under this Act
as a level 2 activity is
subsequently to be treated for the
purposes of this Act as if it were a
level 1 activity unless the Board
determines otherwise.
(4A) If the Board determines that an
activity referred to in subsection
(4) is not subsequently to be
treated as a level 1 activity, the
activity is to be treated, for the
purposes of this Act, as if it were
a level 2 activity and subsections
(8A), (8B) and (8C) of section 25
apply to the application in respect
of that activity as if it were a level
2 activity.
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9. Section 25 amended (Assessment of permissible
level 2 activities)
Section 25 of the Principal Act is amended as
follows:
(a) by omitting subsections (1), (1A), (1B)
and (1C) and substituting the following
subsections:
(1) 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 or a
use or development of land that is
on the same land as, and is not
ancillary to, an existing level 2
activity, the planning authority
must -
(a) 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.
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(1A) For the purposes of subsection
(1), a use or development that is
on the same land as an existing
level 2 activity is not ancillary to
that activity if -
(a) it constitutes conduct of
works within the
definition of that level 2
activity in Schedule 2; or
(b) it constitutes 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; or
(c) it will, or is likely to,
cause serious or material
environmental harm; or
(d) it constitutes conduct of
works within the meaning
of any other level 2
activity in Schedule 2.
(1B) If a planning authority determines
that a use or development of land
that is on the same land as an
existing level 2 activity is
ancillary to that activity, the
planning authority must, if
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required by any person, give
written reasons in support of its
determination.
(b) by inserting the following subsection
after subsection (1D):
(1DA) The 14-day period referred to in
subsection (1D), or such lesser
period as the Board requires, is
to be disregarded for the purposes
of the calculation of the periods
referred to in sections 57(6) and
58(2) of the Land Use Planning
and Approvals Act 1993.
(c) by inserting in subsection (2)(a) "and
Division 1A" after "Principles";
(d) by inserting in subsection (2)(b) "in
accordance with section 27G" after
"application";
(e) by omitting paragraph (c) from
subsection (2);
(f) by inserting the following subsection
after subsection (8C):
(8D) Subject to any further period
agreed under section 57(6A) or
58(2A) of the Land Use Planning
and Approvals Act 1993 and to
the receipt by the planning
authority of additional
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information sufficient to satisfy a
requirement under section 54 of
that Act, the planning authority is
to make its decision to grant or
refuse to grant the permit within
42 days after receiving
notification from the Board under
subsection (5).
10. Section 27 amended (Assessment of activities which
do not require a permit)
Section 27 of the Principal Act is amended as
follows:
(a) by inserting in subsection (3) "and
Division 1A" after "Principles";
(b) by omitting from subsection (4)
"environmental harm" and substituting
"serious or material environmental
harm";
(c) by omitting subsection (5) and
substituting the following subsection:
(5) Subject to subsection (4), 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.
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Penalty: Fine not exceeding 500
penalty units.
(d) by inserting in subsection (6)(a)(i) "and
the reasons for those conditions or
restrictions" after "to the activity";
(e) by inserting in subsection (6)(a)(ii) "and
the reasons for those conditions or
restrictions" after "apply to the activity";
(f) by inserting in subsection (6)(b)(i) ",
together with reasons in support of the
Board's decision" after "proceed";
(g) by inserting in subsection (6)(b)(ii) ",
together with reasons in support of the
Board's decision" after "proceed".
11. Part 3, Division 1A inserted
After section 27 of the Principal Act, the
following Division is inserted in Part 3:
Division 1A - Assessment of activities
27A. Classes of assessment
(1) An assessment by the Board of an
activity, pursuant to section 25 or 27, is
to be one of the following classes:
(a) class 2A;
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(b) class 2B;
(c) class 2C.
(2) A class 2A assessment is the assessment
process applicable to an activity that, in
the opinion of the Board -
(a) is minor in scale or consequence;
and
(b) only has potential local
environmental impacts that may
be readily avoided or mitigated
through appropriate management
measures; and
(c) is unlikely to generate significant
public interest.
(3) A class 2B assessment is the assessment
process applicable to an activity that, in
the opinion of the Board -
(a) involves a complex or multi-
jurisdictional assessment process;
or
(b) involves significant multi-
disciplinary or complex
environmental issues; or
(c) requires approval from another
State Government or the
Commonwealth Government; or
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(d) is likely to generate a high level
of public interest.
(4) A class 2C assessment is the assessment
process applicable to an activity that
satisfies one or more of the criteria set
out in subsection (3) but, in the opinion
of the Board, requires more stringent
assessment or longer time frames than a
class 2B assessment.
27B. Notice of intent
(1) A person who lodges an application for a
permit for a permissible level 2 activity
may first lodge with the Board a notice
of intent.
(2) A notice of intent is to contain the
following information:
(a) the name and contact details of
the person lodging the
application;
(b) the name of the proposed project
and its location;
(c) background of the project
proponent, including details of
the proponent's experience and
financial capacity to undertake
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the project and his, her or its
contact details;
(d) a description of the proposed
project, including its key physical
components;
(e) an outline of the proposed
location of the project and a
general site location map;
(f) an outline of the stakeholder
consultation process undertaken
or proposed to be undertaken,
including the consultation
method, stakeholders consulted or
to be consulted and the issues
raised or to be raised;
(g) a general description of the
physical environment that may be
affected by the project;
(h) the key environmental, health,
economic and social issues
identified for the project to date;
(i) the surveys and studies proposed
or underway in relation to the key
issues for the project;
(j) the proposed timetable for the
project;
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(k) any other details that the Board
may consider relevant to the
project.
27C. Board to advise of proposed class of
assessment
The Board is to advise the proponent or
applicant, and the planning authority, of
the class of assessment that is proposed
to be undertaken under section 27A
within 14 days of -
(a) the lodgment of a notice of intent
or the referral of an application
under section 25(1), whichever
occurs first; or
(b) the referral of an application
under section 24(1); or
(c) the referral of a proposal under
section 27(1) or (2).
27D. Periods for provision of guidance under
section 74(4)
Subject to section 27E, the Board must
provide guidance under section 74(4) -
(a) in the case of a class 2A
assessment, within 21 days; or
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(b) in the case of a class 2B
assessment, within 28 days; or
(c) in the case of a class 2C
assessment, within 63 days -
of the Board's advice under section 27C.
27E. Board may require further information
(1) The Board may require a person to
provide information to assist it in the
provision of guidance under
section 74(4).
(2) If the Board requires the provision of
information under subsection (1) in
respect of a class 2C assessment, the
periods specified in section 27D do not
run, or cease running, until that
information has been provided to the
satisfaction of the Board.
27F. Case for assessment to be lodged within 12
months
(1) A case for assessment of an application
or proposal must be -
(a) in accordance with the guidance
provided by the Board under
section 74(4); and
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(b) lodged with the Board within 12
months after the Board provides
that guidance, or within such
other period as determined by
written agreement between the
Board and the applicant or
proponent.
(2) If a case for assessment referred to in
subsection (1) is not lodged within the
period specified in that subsection, the
Board -
(a) is not required to complete the
assessment; and
(b) may reject the application or
proposal.
(3) If the Board rejects an application or
proposal under subsection (2)(b) -
(a) the Board is to notify the
applicant or proponent of that
rejection; and
(b) the Board may, in the case of an
application for a permit for a
permissible level 2 activity, direct
the relevant planning authority to
refuse to grant the application;
and
(c) the applicant or proponent is to
pay the assessment fee, or such
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portion of it as the Board
determines.
(4) The planning authority must comply with
a direction under subsection (3).
(5) A person who is aggrieved by a decision
of the Board to reject, under
subsection (2)(b), a proposal referred to it
under section 27(1) or (2), may appeal to
the Appeal Tribunal within 14 days after
being notified of the Board's decision.
27G. Periods for advertising of applications and
proposals
(1) Once the Board has sufficient
information to satisfy its requirements as
referred to in section 74(3) in respect of
an application or a proposal, the Board is
to -
(a) in respect of an application
referred to the Board under
section 24(1) or section 25(1),
cause the Director to direct the
relevant planning authority to
advertise the application and to
call for public submissions in
respect of it; or
(b) in respect of a proposal referred
by a person to the Board under
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section 27(1) or (2), advertise the
proposal and call for public
submissions in respect of it.
(2) Any person may make representations
relating to an application or proposal -
(a) in the case of a class 2A
assessment, within 14 days after
the application or proposal is
advertised; or
(b) in the case of a class 2B
assessment, within 28 days after
the application or proposal is
advertised; or
(c) in the case of a class 2C
assessment, within 42 days after
the application or proposal is
advertised.
(3) Notwithstanding section 57(5) of the
Land Use Planning and Approvals Act
1993 and subject to section 54 of that
Act, the planning authority must comply
with the Director's direction under
subsection (1)(a) of this section, unless
the application is refused under section
57(2) of that Act.
(4) In the case of an application referred to
the Board under section 24(1) or
section 25(1), the planning authority
must, within 7 days after the end of the
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relevant period referred to in subsection
(2) of this section, forward to the Board
copies of any representations received
under section 57(5) of the Land Use
Planning and Approvals Act 1993.
27H. Period for completion of assessment
(1) Notwithstanding the Approvals
(Deadlines) Act 1993 and subject to
section 27I, after receipt from the
planning authority of any representations
in the case of an application referred to
the Board under section 24(1) or
section 25(1), or after closure of the
public comment period in the case of a
proposal referred to the Board under
section 27(1) or (2), the Board must
complete its assessment -
(a) in the case of a class 2A
assessment, within 35 days; or
(b) in the case of a class 2B
assessment, within 56 days; or
(c) in the case of a class 2C
assessment, within 91 days.
(2) An assessment commenced by the Board
before the commencement of the
Environmental Management and
Pollution Control Amendment Act 2007
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must be determined within the period
specified in Schedule 1 to the Approvals
(Deadlines) Act 1993 as in effect
immediately before the commencement
of that amendment Act.
27I. Additional information
(1) The Board may require the applicant or
proponent to submit further information
to assist the Board in its assessment of an
application or a proposal.
(2) If the Board requires the submission of
further information, the periods referred
to in section 27H do not run, or cease
running, until that information is
provided to the satisfaction of the Board.
27J. Extension of periods
(1) The periods referred to in section 27H
may be extended by -
(a) any period as determined by a
written agreement between the
Board and the applicant or
proponent at any time before the
expiration of the period to be
extended; or
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(b) a period not exceeding half of the
relevant period under section 27H
as the Minister may determine on
application by the Board.
(2) An extension under subsection (1)(b)
may be made only -
(a) before the expiration of the
relevant period specified in
section 27H; and
(b) where the Minister determines
that there are special
circumstances preventing the
Board from complying with
section 27H.
(3) The Board must give written notice of an
extension -
(a) under subsection (1)(a) to the
planning authority, in the case of
an application referred to the
Board under section 24(1) or
section 25(1); or
(b) under subsection (1)(b) to -
(i) the applicant or
proponent; and
(ii) the planning authority, in
the case of an application
referred to the Board
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under section 24(1) or
section 25(1).
(4) Notice under subsection (3) must be
given within 7 days after the agreement
under subsection (1)(a) or the Minister's
determination under subsection (1)(b), as
the case may be.
27K. Calculation of number of days
A reference in this Division to a period
of a number of days does not include any
public holiday or any day in the period
from the public holiday in respect of
Christmas Day to the public holiday in
respect of New Year's Day, both
inclusive.
12. Section 32 amended (Notification of incidents)
Section 32 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) ", and that
is not assessed and approved by the
Board under section 27," after "3
activity";
(b) by inserting in subsection (2) ", or an
activity that is assessed and approved by
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the Board under section 27," after "3
activity";
(c) by omitting subsection (6) and
substituting the following subsections:
(6) For the purposes of -
(a) subsection (1), a person is
not required to notify the
council of such an
incident if the person has
reasonable grounds for
believing that the incident
has already come to the
notice of the council; and
(b) subsections (2) and (3), a
person is not required to
notify 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
Director.
(6A) A person is required to notify the
council or the Director under this
section despite the fact that to do
so might incriminate the person
or make the person liable to a
penalty.
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13. Section 35 amended (Financial assurance to secure
compliance with Act)
Section 35(1) of the Principal Act is amended as
follows:
(a) by omitting from paragraph (b) "Act."
and substituting "Act; or";
(b) by inserting the following paragraph after
paragraph (b):
(c) complying with any conditions or
restrictions requiring the person
to take action for the purposes of
remediation, site clean-up, site
decommissioning or
infrastructure decommissioning
and which -
(i) have been required by the
Board under section 25 to
be contained in a permit
or under section 27 to be
contained in an
environment protection
notice; or
(ii) are contained in an
environment protection
notice issued and served
by the Director under
section 44.
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14. Section 44 amended (Environment protection
notices)
Section 44 of the Principal Act is amended as
follows:
(a) by omitting paragraphs (a) and (b) from
subsection (1) and substituting the
following paragraphs:
(a) serious or material environmental
harm or environmental nuisance
is being, or is likely to be, caused;
or
(b) serious or material environmental
harm or environmental nuisance
has occurred and remediation of
that harm or nuisance is required;
or
(b) by inserting in subsection (2)
"environmentally relevant" after "to an";
(c) by omitting paragraphs (a) and (b) from
subsection (2) and substituting the
following paragraphs:
(a) serious or material environmental
harm or environmental nuisance
is being, or is likely to be, caused;
or
(b) serious or material environmental
harm or environmental nuisance
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has occurred and remediation of
that harm or nuisance is required;
or
(d) by inserting in subsection (2)
"environmentally relevant" after "for
the";
(e) by inserting in subsection (4) "and in any
event within 7 days" after "practicable";
(f) by inserting the following subsection
after subsection (4):
(4A) Where an environment protection
notice in respect of an activity
that is not a level 2 activity or a
level 3 activity is issued by the
Director, the Director must, as
soon as practicable and in any
event within 7 days, advise the
relevant council in writing of that
fact and of any amendment or
revocation of the notice.
15. Section 46 amended (Registration of environment
protection notices)
Section 46 of the Principal Act is amended by
omitting subsection (6) and substituting the
following subsections:
(6) Where -
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(a) a registered notice is amended or
revoked under section 44; or
(b) a registered notice has been
complied with in full; or
(c) the Director has taken action
under this Division to carry out
the requirements of a registered
notice and 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.
(6A) In subsection (6), "registered notice"
means an environment protection notice
that has been registered by the Recorder
of Titles.
16. Section 48 amended (Civil enforcement
proceedings)
Section 48 of the Principal Act is amended as
follows:
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(a) by omitting from subsection (5)(e)
"payment of" and substituting
"respondent to pay the";
(b) by omitting from subsection (5)(e) "or
any other" first occurring and
substituting ", the Director or a";
(c) by inserting the following paragraph after
paragraph (e) in subsection (5):
(ea) notwithstanding section 28(1) of
the Resource Management and
Planning Appeal Tribunal Act
1993, require a respondent to pay
the reasonable costs and expenses
incurred by an applicant in the
course of investigating the matter
that is the subject of an
application for an order under this
section and the making of that
application, including, but not
limited to, costs arising from -
(i) any action taken by an
authorized officer or
council officer under
Division 1 of Part 7; and
(ii) the taking of witness
statements; and
(iii) the gathering of other
evidence, including the
taking of samples and the
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conduct of tests,
examinations and
analyses; and
(iv) the preparation and
submission of a brief of
evidence to any person
acting on behalf of the
applicant; and
(v) any appearance of counsel
on behalf of the applicant;
(d) by inserting the following subsection
after subsection (5):
(5A) Where an application for an order
under this section is rejected, the
Appeal Tribunal may,
notwithstanding section 28(1) of
the Resource Management and
Planning Appeal Tribunal Act
1993, require an applicant to pay
the reasonable costs and expenses
incurred by a respondent in the
course of investigating the matter
that is the subject of the
application and of responding to
the application including, but not
limited to, costs arising from -
(a) the taking of witness
statements; and
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(b) the gathering of other
evidence, including the
taking of samples and the
conduct of tests,
examinations and
analyses; and
(c) the preparation and
submission of a brief of
evidence to any person
acting on behalf of the
respondent; and
(d) any appearance of counsel
on behalf of the
respondent.
17. Section 53 amended (Offence of causing
environmental nuisance)
Section 53 of the Principal Act is amended as
follows:
(a) by omitting paragraph (c) from
subsection (3) and substituting the
following paragraph:
(c) in the case of noise emitted from
residential premises, whether it is,
or is likely to be, audible in a
habitable room in any other
residential premises.
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(b) by omitting "private residence or
residential flat" from the definition of
"residential premises" in subsection (6)
and substituting "residence and includes
any land within the boundaries of the
block of land on which the building is
situated".
18. Section 53A inserted
After section 53 of the Principal Act, the
following section is inserted in Division 4:
53A. Evidentiary provision for environmental
nuisance
If, in a proceeding for an offence against
section 53(1) or (2), an authorized officer
or a council officer gives evidence, based
on the officer's own senses, that noise,
smoke, dust, fumes or odour was emitted
from a place occupied by the defendant
and travelled to, or was, or was likely to
be, detectable at, a place occupied by
another person, that evidence is prima
facie evidence of the matters so stated.
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19. Section 55A amended (General environmental duty
defence)
Section 55A of the Principal Act is amended by
omitting subsection (1) and substituting the
following subsection:
(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) in the case of an offence arising
solely from the emission of a
pollutant, maximum quantities,
concentrations, emission rates,
discharge rates or overall
volumes of the particular
pollutant have been set in a State
Policy, an environment protection
policy or as a condition in a
permit, and it is shown that those
quantities, concentrations,
emission rates, discharge rates or
overall volumes were not
exceeded; or
(b) in the case of any other offence -
(i) a State Policy,
environment protection
policy or permit provides
that compliance with
specified provisions of
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that instrument will
satisfy the general
environmental duty in
respect of an activity, and
it is shown that those
provisions, insofar as they
relate to, or involve, the
act or omission
comprising the offence
were complied with; or
(ii) a code of practice, made
and approved in
accordance with the
regulations, provides that
the taking of specified
measures will satisfy the
general environmental
duty in respect of an
activity, and it is shown
that those measures,
insofar as they relate to,
or involve, the act or
omission comprising the
offence were taken.
20. Section 63 amended (Orders by court against
offenders)
Section 63(1) of the Principal Act is amended as
follows:
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(a) by omitting "that resulted in
environmental harm";
(b) by omitting from paragraph (d)(i) "any
public authority" and substituting "the
Board, the Director or any public
authority".
21. Section 65 inserted
After section 64 of the Principal Act, the
following section is inserted in Division 4:
65. Recovery of other costs associated with
prosecutions
Where a person is convicted of an
offence, the court may order the person
to pay, in addition to any costs and
expenses payable under section 63 or 64,
the reasonable costs and expenses
incurred by the Director or the council in
the course of the investigation and
prosecution of the offence, including, but
not limited to, costs and expenses arising
from -
(a) any action taken by an authorized
officer or council officer under
Division 1 of Part 7; and
(b) the taking of witness statements;
and
40
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(c) the gathering of other evidence;
and
(d) the preparation and submission of
a brief of evidence to any person
acting on behalf of the applicant;
and
(e) any appearance of counsel on
behalf of the Director or the
council.
22. Section 67 amended (Service and acceptance of an
environmental infringement notice)
Section 67(1) of the Principal Act is amended by
omitting "on that person an environmental
infringement notice in respect of that offence"
and substituting "an environmental infringement
notice in respect of that offence on that person
or, if the identity of that person cannot be readily
ascertained or confirmed, on the occupier or
person apparently in charge of the place or
vehicle at, in or in relation to which the officer is
satisfied such an offence has been committed".
23. Part 6 repealed
Part 6 of the Principal Act is repealed.
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24. Section 92 amended (Powers of authorized officers
and council officers)
Section 92 of the Principal Act is amended as
follows:
(a) by inserting the following paragraph after
paragraph (k) in subsection (1):
(ka) direct, orally or in writing -
(i) a person whom the officer
reasonably believes has
committed, is committing
or is likely to commit an
offence under section 53;
or
(ii) where the identity of that
person cannot be readily
ascertained or confirmed,
the occupier or person
apparently in charge of a
place or vehicle at, in or
in relation to which the
officer reasonably
believes such an offence
has been committed, is
being committed or is
likely to be committed -
to cease committing, or to not
commit, that offence; and
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(b) by inserting the following subsection
after subsection (1):
(1A) Without limiting the powers set
out in subsection (1), an
authorized officer or council
officer may exercise any of those
powers for the prevention or
investigation of offences under
this Act or the regulations.
(c) by omitting subsection (3) and
substituting the following subsection:
(3) If the entry is made to residential
premises in the circumstances
referred to in subsection (2)(d)(i),
and none of the exceptions
referred to in paragraph (a), (b)
and (c) of subsection (2) and
paragraph (d)(ii) or (iii) of that
subsection apply, the entry must
be made at a time that is
reasonable.
25. Sections 92A and 92B inserted
After section 92 of the Principal Act, the
following sections are inserted in Division 1:
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Amended
92A. Failure to provide name or address
A person, when required by an
authorized officer or a council officer to
state his or her name and address, must
not -
(a) fail or refuse to state his or her
full name and residential address;
or
(b) state any name or residential
address that is false.
Penalty: Fine not exceeding 2 penalty
units.
92B. Power of arrest
An authorized officer who is a police
officer may arrest, without warrant, any
person who -
(a) fails or refuses to state his or her
full name or residential address;
or
(b) states any name or residential
address that the officer has
reasonable grounds for believing
is false; or
(c) without reasonable excuse,
refuses or fails to comply with a
direction under section 92(1)(ka).
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26. Section 100A inserted
After section 100 of the Principal Act, the
following section is inserted in Division 2:
100A. Listening Devices Act 1991 not to apply
Section 5(1) of the Listening Devices Act
1991 does not apply to the use of
videotaping equipment for recording an
interview between an authorized officer
or council officer and a person suspected
of having committed an offence under
this Act.
27. Schedule 2 amended (Level 2 Activities)
Schedule 2 to the Principal Act is amended as
follows:
(a) by omitting paragraph (c) from clause 1
and substituting the following paragraph:
(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 or
reprocessed by filtration or
physical or chemical separation.
(b) by omitting from clause 2(e) "or" third
occurring and substituting "of";
45
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(c) by omitting paragraph (g) from clause 2
and substituting the following paragraph:
(g) Wood Processing Works: the
conduct of works (other than
works at a builders supply yard,
home improvement centre or
firewood depot) at which timber
is sawn, cut, compressed, milled,
machined or kiln-dried, being
works with a total production of
1 000 cubic metres or more per
year.
(d) by omitting subparagraph (i) from clause
2(i) and substituting the following
subparagraph:
(i) mobile woodchippers while
operating in the same forest
harvest area from which the trees
or parts of trees being processed
were obtained; and
(e) by omitting from clause 2(i)(ii) "mills;
and" and substituting "mills.";
(f) by omitting subparagraph (iii) from
clause 2(i);
(g) by omitting paragraph (a) from clause 3
and substituting the following paragraph:
(a) Wastewater Treatment Works:
the conduct of wastewater
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treatment works that involve the
discharge of treated or untreated
sewage, septic tank effluent or
industrial or commercial
wastewater 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 or
wastewater.
(h) by inserting in clause 3(b) "of" after
"conduct";
(i) by inserting the following subparagraph
after subparagraph (i) in clause 3(b):
(ia) storage, treatment or disposal of
clean fill; or
(j) by inserting the following paragraph after
paragraph (c) in clause 3:
(d) Resource recovery: the conduct
of works for -
(i) the production of compost
or mushroom substrate,
being works with a
production capacity of
100 tonnes per year or
more, other than -
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(A) backyard
composting for
domestic use; and
(B) on-farm
composting for
use on agricultural
land having the
same owner as the
land on which the
compost is
produced; and
(C) works in respect
of silage for use
on agricultural
land; or
(ii) the application to land of
class 2 or class 3
biosolids, within the
meaning of the
Tasmanian Biosolids Re-
use Guidelines 1999, as
amended from time to
time, where the
application rate is 50 wet
tonnes or more per
hectare every 3 years or
greater than 50% of the
Nitrogen Limited
Application Rate per 3
year period.
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(k) by omitting from clause 4(c) "freezing,
chilling, packing" and substituting
"smoking, drying";
(l) by inserting in clause 4(c) ", other than
by freezing, chilling or packing," after
"sale";
(m) by omitting paragraphs (b) and (c) from
clause 7;
(n) by omitting paragraph (e) from clause 7
and substituting the following
paragraphs:
(e) Disposing of Wastes in Waters
Within the Limits of the State: the
deposition of wastes (including
dredged spoils) in waters within
the limits of the State, other than
in relation to the construction or
placement of an artificial reef.
(f) Wind Energy Facilities: facilities
for generating energy through
wind with a maximum generating
capacity of 30 megawatts or
more.
28. Schedule 5 repealed
Schedule 5 to the Principal Act is repealed.
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s. 29 Part 3 - Approvals (Deadlines) Act 1993 Amended
PART 3 - APPROVALS (DEADLINES) ACT 1993
AMENDED
29. Principal Act
In this Part, the Approvals (Deadlines) Act
1993* is referred to as the Principal Act.
30. Schedule 1 amended (Approval Time Limits)
Schedule 1 to the Principal Act is amended by
omitting
Environmental Management and
Pollution Control Act 1994
Assessment of permissible 180 days from the date on
level 1 activities referred to which the Board of
the Board of Environmental Environmental Management
Management and Pollution and Pollution Control
Control under section 24 receives adequate
(1) of the Environmental information to satisfy the
Management and Pollution requirements of section 74
Control Act 1994 (3) of the Environmental
Management and Pollution
Control Act 1994.
*No. 41 of 1993
50
Environmental Management and Pollution Control Amendment
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Act No. of
Part 3 - Approvals (Deadlines) Act 1993 Amended s. 30
Assessment of permissible 180 days from the date on
level 2 activities which the Board of
Environmental Management
and Pollution Control
receives adequate
information to satisfy the
requirements of section 74
(3) of the Environmental
Management and Pollution
Control Act 1994.
Assessment of activities, 180 days from the date on
which do not require which the Board of
permits under the Land Use Environmental Management
Planning and Approvals and Pollution Control
Act 1993, referred to the receives adequate
Board of Environmental information to satisfy the
Management and Pollution requirements of section 74
Control under section 27 of (3) of the Environmental
the Environmental Management and Pollution
Management and Pollution Control Act 1994.
Control Act 1994
.
Government Printer, Tasmania 51