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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
FINFISH FARMING ENVIRONMENTAL
REGULATION BILL 2017
__________
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 5C inserted
5C. Finfish farming
6. Section 22 amended (Registers of environmental management
and enforcement instruments)
7. Section 25 amended (Assessment of permissible level 2
activities)
8. Section 25A amended (Assessment of applications for permits
that are combined with applications for planning scheme
amendments )
9. Section 27 amended (Assessment of activities which do not
require a permit)
10. Sections 27AA, 27AB, 27AC and 27AD inserted
27AA. Assessment of EL activities where no planning
permit required
27AB. Assessment of EL activity where PORS declared
[Bill 47]-XI
27AC. Directions in relation to permits in respect of EL
activities
27AD. Minor variations of planning permit in relation to EL
activities
11. Section 27A amended (Classes of assessment)
12. Section 27B amended (Notice of intent)
13. Section 27C amended (Board to advise of proposed class of
assessment)
14. Section 27G amended (Periods for advertising of applications
and proposals)
15. Section 27H amended (Period for completion of assessment)
16. Section 29 amended (Effect of environmental agreements)
17. Section 35 amended (Financial assurance to secure compliance
with Act)
18. Part 3, Division 8 inserted
Division 8 - Environmental licences
Subdivision 1 - Interpretation and offences
42B. Interpretation of Division 8
42C. Offences relating to licences
Subdivision 2 - Licences in relation to existing lawful
activities
42D. Persons to whom licences for existing lawful
activities may be granted
42E. Grant of licences in relation to existing lawful
activities
42F. Conditions of licences in relation to existing lawful
activities
42G. Effect of decision to grant licence in relation to
existing authorisations
42H. Notification that existing authorisation is void or
condition inconsistent
Subdivision 3 - Licences where no existing authority
42I. Applications for environmental licences
42J. Grant of licence by Director
42K. Grant of licence by Board
42L. Refusal by Director or Board to grant licence
42M. Notifications of grant or refusal of licences or refusal
to accept application for licences
Subdivision 4 - Variation of licences
42N. Variation of licence by Director at holder's request
2
42O. Referral to Board of certain applications for variation
42P. Variation of licence on Director's initiative
42Q. Variation by Board of licence
42R. Notice of decision by Board in relation to variation
Subdivision 5 - Renewal of licences
42S. Applications for renewal of licences
42T. Renewal of licences on application
42U. Renewal of licence on Director's own initiative
Subdivision 6 - Transfer of licences
42V. Transfer of licence only authorised if approved
42W. Transfer of licences
42X. Refusal to transfer licence
42Y. Director may require condition to be satisfied before
transfer
Subdivision 7 - General provisions
42Z. Conditions and restrictions of licences
42ZA. Director may require information to be provided
42ZB. Issue of licence document in relation to licence
granted, varied, transferred or renewed
42ZC. When licences take and cease to have effect
42ZD. Deferral of certain decisions pending outcome of
proceedings
42ZE. Notices of certain decisions to be given
Subdivision 8 - Surrender, suspension and cancellation of
licences
42ZF. Suspension, or cancellation, of licences
42ZG. Notice to be given before suspension or cancellation
42ZH. Surrender of licence
Subdivision 9 - Appeals in relation to licences
42ZI. Right of appeal
42ZJ. Appeals by persons who have made representations
42ZK. Effect of notice of appeal
42ZL. Power of Appeal Tribunal in relation to certain
appeals
19. Section 44 amended (Environment protection notices)
20. Section 48 amended (Civil enforcement proceedings)
21. Section 55A amended (General environmental duty defence)
22. Section 98AA amended (Liability for payment of fees)
23. Section 102 amended (Regulations)
24. Schedule 2 amended (Level 2 Activities)
3
PART 3 - INLAND FISHERIES ACT 1995 AMENDED
25. Principal Act
26. Section 51A inserted
51A. Notification of Director, EPA, of certain matters
PART 4 - LIVING MARINE RESOURCES MANAGEMENT ACT 1995
AMENDED
27. Principal Act
28. Section 3 amended (Interpretation)
29. Section 11 amended (Exemption from Act)
30. Section 92A inserted
92A. Notification of Director, EPA of certain matters
PART 5 - MARINE FARMING PLANNING ACT 1995 AMENDED
31. Principal Act
32. Section 3 amended (Interpretation)
33. Section 8 amended (Marine Farming Planning Review Panel)
34. Section 17A inserted
17A. Role of Director, EPA in relation to marine farming
development plans in relation to finfish farming
35. Section 19 amended (Area comprised in draft plan)
36. Section 19A inserted
19A. Finfish marine farming exclusion zones
37. Section 21 amended (Draft marine farming development plan)
38. Section 23 amended (Environmental impact statement)
39. Section 24 amended (Draft management controls)
40. Section 25 amended (Approval of draft plan)
41. Section 29 amended (Consideration of draft plan, management
controls and representations)
42. Section 31 amended (Final approval of draft plan)
43. Section 32 amended (Requirements for preparation of
amendment)
44. Section 34 amended (Amendment of marine farming
development plan)
45. Section 35 amended (Certification of draft amendment)
4
46. Section 41 amended (Consideration by Panel of draft
amendment, &c.)
47. Section 42 amended (Final approval or refusal of draft
amendment)
48. Section 43 amended (Emergency order)
49. Section 44 amended (Operation of emergency order)
50. Section 45 amended (Emergency plans)
51. Section 46 amended (Operation of emergency plan)
52. Section 47 amended (Exemption from emergency plan)
53. Section 59 amended (Granting of lease)
54. Section 60 amended (Special lease)
55. Schedule 6 inserted
SCHEDULE 6 - FINFISH MARINE FARMING
EXCLUSION ZONE
PART 6 - RESOURCE MANAGEMENT AND PLANNING APPEAL
TRIBUNAL ACT 1993 AMENDED
56. Principal Act
57. Section 14 amended (Parties to appeal before Appeal Tribunal)
PART 7 - CONCLUDING PROVISION
58. Repeal of Act
5
6
FINFISH FARMING ENVIRONMENTAL
REGULATION BILL 2017
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
SHANE DONNELLY, Clerk of the House
20 September 2017
(Brought in by the Minister for Primary Industries and Water,
the Honourable Jeremy Page Rockliff)
A BILL FOR
An Act to amend the Environmental Management and
Pollution Control Act 1994, the Inland Fisheries Act 1995,
the Living Marine Resources Management Act 1995, the
Marine Farming Planning Act 1995 and the Resource
Management and Planning Appeal Tribunal Act 1993, so as
to enable the appropriate regulation of the environmental
impact of finfish farming, and for related purposes
Be it enacted by Her 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 Finfish Farming
Environmental Regulation Act 2017.
[Bill 47] 7
Finfish Farming environmental regulation Act 2017
Act No. of
s. 2 Part 1 - Preliminary
2. Commencement
This Act commences on the day on which this
Act receives the Royal Assent.
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Act No. of
Part 2 - Environmental Management and Pollution Control Act 1994 s. 3
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 inserting the following definition after
the definition of director:
EL activity means an activity that is a
level 2 activity by virtue of
paragraph (h) of clause 4 of
Schedule 2;
(b) by inserting the following definition after
the definition of environmental
infringement notice:
environmental licence means an
environmental licence granted
under Division 8 of Part 3;
*No. 44 of 1994
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s. 4 Part 2 - Environmental Management and Pollution Control Act 1994
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(c) by inserting the following definitions
after the definition of financial
assurance:
finfish means fish of the class
Osteichthyes, other than fish of
the order Anguilliformes;
finfish farming - see section 5C;
fish farm has the same meaning as in
the Inland Fisheries Act 1995;
fish farm licence means a fish farm
licence that is in force under the
Inland Fisheries Act 1995;
(d) by inserting the following definition after
the definition of general manager:
inland fish farming means an activity,
in relation to finfish farming, that
is an activity -
(a) that comprises fish
farming, within the
meaning of the Inland
Fisheries Act 1995; or
(b) to which section 64(1)(c)
of the Living Marine
Resources Management
Act 1995 relates;
(e) by inserting the following definitions
after the definition of level 3 activity:
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Amended
marine farming has the same meaning
as in the Living Marine
Resources Management Act
1995;
marine farming licence means a
marine farming licence that is in
force under the Living Marine
Resources Management Act
1995;
(f) by inserting the following definition after
the definition of State Policy:
State waters means -
(a) the waters of the
territorial sea adjacent to
the State that are within 3
nautical miles of the
seaward side of the
baseline of the territorial
sea, by reference to which
the territorial limits of
Australia are defined for
the purposes of
international law; and
(b) the sea on the landward
side of that baseline of the
territorial sea adjacent to
the State that is not within
the limits of the State; and
(c) waters within the limits of
the State;
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s. 5 Part 2 - Environmental Management and Pollution Control Act 1994
Amended
5. Section 5C inserted
After section 5B of the Principal Act, the
following section is inserted in Part 1:
5C. Finfish farming
(1) For the purposes of this Act, finfish
farming is the activity, in the relevant
circumstances, of farming of finfish.
(2) For the purposes of subsection (1), the
activity of farming of finfish is the
activity that consists of, or includes, any
one or more of the following activities:
(a) the farming, culturing, hatching,
rearing, ranching, enhancement,
or breeding, of finfish;
(b) any activities associated with, and
for the purposes of, an activity
referred to in paragraph (a).
(3) For the purposes of subsection (1), the
relevant circumstances in relation to the
farming of finfish are that -
(a) the farming of finfish is an
activity -
(i) to which section 64(1)(a)
of the Living Marine
Resources Management
Act 1995 relates; or
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Part 2 - Environmental Management and Pollution Control Act 1994 s. 5
Amended
(ii) in relation to which a
permit under section 12 or
14 of the Living Marine
Resources Management
Act 1995 is in force; or
(b) the farming of finfish is
conducted on a fish farm and the
facilities or area of land, or area
of State waters, on or at which the
farming of finfish is conducted
have the required production or
containment characteristics; or
(c) the farming of finfish is an
activity to which section 64(1)(c)
of the Living Marine Resources
Management Act 1995 relates and
the facilities or area of land, or
area of State waters, on or at
which the farming of finfish is
conducted have the required
production or containment
characteristics.
(4) For the purposes of this section, facilities
or an area of land, or an area of State
waters, on or at which the farming of
finfish is conducted have the required
production or containment characteristics
if the facilities, area of land, or area of
State waters -
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Finfish Farming environmental regulation Act 2017
Act No. of
s. 6 Part 2 - Environmental Management and Pollution Control Act 1994
Amended
(a) have, or are intended to have, the
capacity to produce, in a year, 5
tonnes or more of finfish; or
(b) contain, or are intended to
contain, in a year, finfish with a
biomass of 2 tonnes or more.
(5) For the purposes of this Act, an activity
may constitute finfish farming whether it
occurs -
(a) on land; or
(b) on inland waters within the
meaning of the Inland Fisheries
Act 1995; or
(c) in State waters.
6. Section 22 amended (Registers of environmental
management and enforcement instruments)
Section 22(1) of the Principal Act is amended by
inserting before paragraph (a) the following
paragraph:
(aa) any licence document, in relation to an
environmental licence, that is issued
under section 42ZB;
14
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Part 2 - Environmental Management and Pollution Control Act 1994 s. 7
Amended
7. Section 25 amended (Assessment of permissible
level 2 activities)
Section 25 of the Principal Act is amended as
follows:
(a) by omitting subsection (1D) and
substituting the following subsections:
(1D) If an application in relation to an
activity, other than an EL
activity, is referred to the Board
under subsection (1), the Board is
to determine within 14 days
whether it needs to assess the
activity to which the application
relates.
(1DAA) If an application that relates to an
EL activity is referred to the
Board under subsection (1), the
application is not an application
to which subsection (1DAB)
applies and there is no
environmental licence in relation
to the activity, the Board, within
42 days -
(a) is to determine under
section 42K(2) whether to
refuse to grant an
environmental licence in
relation to the activity;
and
15
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s. 7 Part 2 - Environmental Management and Pollution Control Act 1994
Amended
(b) if it refuses under
section 42K(2) to grant an
environmental licence in
relation to the activity, is
to determine that it does
not need to assess the
activity; and
(c) if it does not refuse under
section 42K(2) to grant an
environmental licence in
relation to the activity, is
to determine that it needs
to assess the activity.
(1DAB) If an application that relates to an
EL activity is referred to the
Board under subsection (1) and
the application relates to a
proposed expansion,
intensification or modification of
an activity that is carried out
under an environmental licence,
the Board, within 42 days -
(a) is to determine whether or
not the proposed
expansion, intensification
or modification of an
activity is
environmentally
significant; and
(b) if it determines that the
proposed expansion,
16
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Act No. of
Part 2 - Environmental Management and Pollution Control Act 1994 s. 7
Amended
intensification or
modification of an
activity is
environmentally
significant, is to
determine under
section 42Q(2) whether to
refuse to vary an
environmental licence in
relation to the activity;
and
(c) if the Board -
(i) determines that
the proposed
expansion,
intensification or
modification of an
activity is not
environmentally
significant; or
(ii) refuses under
section 42Q(2) to
vary an
environmental
licence in relation
to the activity -
is to determine that it does
not need to assess the
activity; and
(d) if the Board -
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s. 7 Part 2 - Environmental Management and Pollution Control Act 1994
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(i) determines that
the proposed
expansion,
intensification or
modification of an
activity is
environmentally
significant; and
(ii) does not refuse
under
section 42Q(2) to
vary an
environmental
licence in relation
to the activity -
is to determine that it
needs to assess the
activity.
(1DAC) Subsection (1D),
subsection (1DAA) and
subsection (1DAB) do not apply
in relation to -
(a) an application made under
Division 2A of Part 3 of
the Land Use Planning
and Approvals Act 1993,
as in force before the
commencement of section
10 of the Land Use
Planning and Approvals
Amendment (Tasmanian
18
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Act No. of
Part 2 - Environmental Management and Pollution Control Act 1994 s. 7
Amended
Planning Scheme) Act
2015; or
(b) an application made under
section 40T of the Land
Use Planning and
Approvals Act 1993, as in
force after the
commencement of section
10 of the Land Use
Planning and Approvals
Amendment (Tasmanian
Planning Scheme) Act
2015.
(b) by inserting in subsection (1DA) "or, in
the case of an application in relation to
an EL activity, the 42-day period referred
to in subsection (1DAA) or subsection
(1DAB)," after "subsection (1D),";
(c) by omitting subsection (1E) and
substituting the following subsection:
(1E) The Board is taken to have
determined that it needs to assess
the activity to which the
application relates under this Act
if it has not notified the planning
authority to the contrary -
(a) where paragraph (b) does
not apply, before the end
of the 14-day period
19
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s. 7 Part 2 - Environmental Management and Pollution Control Act 1994
Amended
referred to in
subsection (1D); or
(b) if the activity is an EL
activity, before the end of
the 42-day period referred
to in subsection (1DAA)
or (1DAB), as the case
may be.
(d) by inserting the following subsections
after subsection (3):
(4) Subsection (4A) applies in
relation to an application if the
Board -
(a) in accordance with
subsection (1DAA)(b) or
(1DAB)(c), determines
that it does not need to
assess an activity to which
an application relates; and
(b) has directed the planning
authority, in a notice
under section 27AC(2), to
refuse to grant a permit in
relation to the activity.
(4A) If this subsection applies in
relation to an application, the
planning authority is to determine
the application under section
57(6) of the Land Use Planning
and Approvals Act 1993 in
20
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Act No. of
Part 2 - Environmental Management and Pollution Control Act 1994 s. 7
Amended
accordance with the direction
under section 27AC(2), without
exhibiting the application in
accordance with section 57(3) of
the Land Use Planning and
Approvals Act 1993, and for that
purpose -
(a) section 57(3) of the Land
Use Planning and
Approvals Act 1993 does
not apply in relation to the
application; and
(b) the reference in section
57(6) of the Land Use
Planning and Approvals
Act 1993 to a notice under
subsection (3) is to be
taken to be a reference to
the notice to the planning
authority in accordance
with section 27AC(2).
(e) by inserting in subsection (5) "in relation
to an activity, other than an EL activity"
after "section";
(f) by inserting in subsection (6) ", under
subsection (5)," after "which the Board
may";
(g) by inserting in subsection (8) ", under
subsection (5)," after "Board has";
21
Finfish Farming environmental regulation Act 2017
Act No. of
s. 8 Part 2 - Environmental Management and Pollution Control Act 1994
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(h) by omitting subsection (8D) and
substituting the following subsection:
(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
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 -
(a) within 42 days after
receiving notification
from the Board under
subsection (5); or
(b) within 42 days after
receiving, under
section 42M(2) or
section 42R(1), a notice
from the Board in relation
to the activity.
8. Section 25A amended (Assessment of applications
for permits that are combined with applications for
planning scheme amendments)
Section 25A of the Principal Act is amended as
follows:
22
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Amended
(a) by inserting in subsection (1) "and the
activity to which the application relates is
not an EL activity" after "25";
(b) by inserting in subsection (1A) "and the
activity to which the application relates is
not an EL activity" after "25";
(c) by inserting the following subsections
after subsection (1A):
(1B) Subsection (1C) applies to -
(a) an application for a permit
made under Division 2A
of Part 3 of the Land Use
Planning and Approvals
Act 1993, as in force
before the commencement
of section 10 of the Land
Use Planning and
Approvals Amendment
(Tasmanian Planning
Scheme) Act 2015; and
(b) an application for a permit
made under section 40T
of the Land Use Planning
and Approvals Act 1993,
as in force after the
commencement of section
10 of the Land Use
Planning and Approvals
Amendment (Tasmanian
23
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Act No. of
s. 8 Part 2 - Environmental Management and Pollution Control Act 1994
Amended
Planning Scheme) Act
2015 -
if the activity to which the
application relates is an EL
activity.
(1C) If an application, in relation to an
activity, to which this subsection
applies is referred to the Board
under section 25 -
(a) the Board, if the
application -
(i) is not an
application to
which
subparagraph (ii)
applies, must,
within 42 days,
determine under
section 42K(2)
whether to refuse
to grant an
environmental
licence in relation
to the activity; or
(ii) relates to a
proposed
expansion,
intensification or
modification of an
activity that is
24
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Part 2 - Environmental Management and Pollution Control Act 1994 s. 8
Amended
carried out under
an environmental
licence, must,
within 42 days,
determine under
section 42Q(2)
whether to refuse
to vary an
environmental
licence in relation
to the activity; and
(b) the Board -
(i) if it refuses under
section 42K(2) or
section 42Q(2) to
grant or vary an
environmental
licence in relation
to the activity,
must determine
that it does not
need to assess the
activity; or
(ii) if it does not
refuse under
section 42K(2) or
section 42Q(2) to
grant or vary an
environmental
licence in relation
to the activity,
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s. 8 Part 2 - Environmental Management and Pollution Control Act 1994
Amended
must assess the
activity; and
(c) the Board may, by notice
in writing served on the
applicant for the permit
within 28 days after the
day of referral, require the
applicant to provide it
with additional
information for the
purpose of the
assessment.
(1D) If the Board, in accordance with
subsection (1C)(b)(i), determines
that it does not need to assess an
activity to which an application,
referred to the Board under
section 25, relates and has
directed the planning authority, in
a notice under section 27AC(2),
to refuse to grant a permit in
relation to the activity -
(a) the planning authority,
after determining, under
section 40Y of the Land
Use Planning and
Approvals Act 1993, the
application in accordance
with the notice under
section 27AC(2) by
refusing to grant a permit,
is to give notice to the
26
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Part 2 - Environmental Management and Pollution Control Act 1994 s. 8
Amended
applicant of the
determination; and
(b) the planning authority is
to be taken to have
refused, under section 38
of the Land Use Planning
and Approvals Act 1993,
to prepare a draft
amendment of an LPS
that is referred to in a
request under section 40T
of that Act in relation to
the application for a
permit; and
(c) despite any other
provision of the Land Use
Planning and Approvals
Act 1993, no further
action by the planning
authority or the
Commission is to be taken
under the Land Use
Planning and Approvals
Act 1993 in relation to -
(i) the application; or
(ii) the application, for
an amendment to
an LPS, that is
referred to in a
request under
section 40T of that
27
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s. 8 Part 2 - Environmental Management and Pollution Control Act 1994
Amended
Act in relation to
the application for
a permit.
(d) by inserting in subsection (2) "under
subsection (1), (1A) or (1C)" after
"applicant";
(e) by inserting in subsection (3) ", if any,
for the purposes of the Land Use
Planning and Approvals Act 1993," after
"its assessment";
(f) by omitting from subsection (3) "in
subsection (1) or (1A)" and substituting
"in subsection (1), (1A) or (1C)";
(g) by inserting the following subsections
after subsection (3):
(3A) For the purposes of
subsection (3), the result of the
assessment, for the purposes of
the Land Use Planning and
Approvals Act 1993, is the result
of the assessment before the
Board takes into account any
representations, in relation to the
application, that are provided to
the Board under section 41(3) of
that Act.
(3B) The Board must complete its
assessment, for the purposes of
making a determination under
Division 8 of Part 3 in relation to
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Amended
an application referred to in
subsection (1C), as soon as
practicable after the date on
which the application was
referred to the Board.
(3C) For the purposes of
subsection (3B), the Board is to
complete its assessment of an
application referred to in
subsection (1C), after taking into
account any representations, in
relation to the application, that
are provided to the Board under
section 41(3) of the Land Use
Planning and Approvals Act
1993.
(3D) Section 41(4) of the Land Use
Planning and Approvals Act 1993
does not apply in relation to an
application referred to in
subsection (1C).
(h) by omitting from subsection (4)
"subsection (1) or (1A)" and substituting
"subsection (1), (1A) or(1C)".
9. Section 27 amended (Assessment of activities which
do not require a permit)
Section 27 of the Principal Act is amended by
inserting after subsection (7) the following
subsection:
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s. 10 Part 2 - Environmental Management and Pollution Control Act 1994
Amended
(8) This section does not apply in relation to
an activity to which section 27AA
applies.
10. Sections 27AA, 27AB, 27AC and 27AD inserted
After section 27 of the Principal Act, the
following sections are inserted in Division 1:
27AA. Assessment of EL activities where no
planning permit required
(1) If a person proposes to undertake a level
2 activity that is an EL activity and that
does not require a permit under the Land
Use Planning and Approvals Act 1993,
the person must refer the proposed
activity to the Board for assessment
under this Act.
(2) Subsection (1) does not apply in relation
to an activity if -
(a) an application has been made
under the Living Marine
Resources Management Act 1995
for a marine farming licence in
relation to the activity; or
(b) there is a permit, issued under
section 12 or 14 of the Living
Marine Resources Management
Act 1995, that is in force in
relation to the activity.
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(3) If an activity is referred to the Board
under subsection (1) or an application in
relation to an activity is referred to the
Board under section 42I(2) -
(a) the Board must determine under
section 42K(2) whether to refuse
to grant an environmental licence
in relation to the activity; and
(b) if the Board does not refuse under
section 42K(2) to grant an
environmental licence in relation
to the activity, the Board must
undertake, in accordance with the
Environmental Impact
Assessment Principles and
Division 1A, an assessment of the
activity.
(4) If an application in relation to an activity
is referred to the Board under
section 42O -
(a) the Board must determine under
section 42Q(2) whether to refuse
to vary an environmental licence
in relation to the activity; and
(b) if the Board does not refuse under
section 42Q(2) to vary an
environmental licence in relation
to the activity, the Board must
undertake, in accordance with the
Environmental Impact
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Assessment Principles and
Division 1A, an assessment of the
activity.
27AB. Assessment of EL activity where PORS
declared
(1) In this section -
Panel, in relation to an activity, means
the Development Assessment
Panel established under section
60M of the Land Use Planning
and Approvals Act 1993 in
relation to the activity.
(2) This section applies in relation to a
project that -
(a) is declared under section 60G of
the Land Use Planning and
Approvals Act 1993 to be a
project of regional significance;
and
(b) consists of or includes an EL
activity.
(3) If a project to which this section applies
is referred to the Director under
section 60K(1) of the Land Use Planning
and Approvals Act 1993 -
(a) section 60K(3), (4), (5) and (6) of
the Land Use Planning and
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Approvals Act 1993 do not apply
in relation to the project; and
(b) the Director must, within 14 days,
notify the Minister that an
environmental licence is required
in relation to the activity; and
(c) the Director is to refer the project
to the Board.
(4) If a project is referred to the Board under
subsection (3) and the project -
(a) is not a project to which
paragraph (b) or (c) applies, the
Board must, within 42 days,
determine under section 42K(2)
whether to refuse to grant an
environmental licence in relation
to the activity to which the
project relates; or
(b) relates to a proposed expansion,
intensification or modification of
an activity that is carried out
under an environmental licence
and is not a project to which
paragraph (c) applies, the Board
must, within 42 days, determine
under section 42Q(2) whether to
refuse to vary an environmental
licence in relation to the activity;
or
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(c) is a project to which relates a
notice of intent, lodged under
section 27B(1), in respect of an
activity in relation to which the
Board has determined under
section 42K(2) or section 42Q(2)
to refuse to grant or vary an
environmental licence, the Board
is not to undertake an
environmental impact assessment
of the project.
(5) If a project is referred to the Board under
subsection (3) -
(a) the Board, if -
(i) it does not refuse under
section 42K(2) or
section 42Q(2) to grant or
vary an environmental
licence in relation to the
activity to which the
project relates; and
(ii) subsection (4)(c) does not
apply in relation to the
project -
is to notify the Panel in relation to
the project that the Board is to
undertake an environmental
impact assessment of the project;
and
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(b) a notice given under
paragraph (a) is to be taken, for
the purposes of section 60L of the
Land Use Planning and
Approvals Act 1993, to be a
determination of the EPA
Director under section 60K(3) of
that Act that the EPA Board is to
undertake an environmental
impact assessment of the project.
(6) If a project to which this section applies
is referred to the Board under
subsection (3)(c) -
(a) the Board, if -
(i) it refuses under
section 42K(2) or
section 42Q(2) to grant or
vary an environmental
licence in relation to the
activity to which the
project relates; or
(ii) subsection (4)(c) applies
in relation to the project -
is to notify the Panel in relation to
the project that the Board will not
undertake an environmental
impact assessment of the project;
and
(b) a notice given under
paragraph (a) is to be taken, for
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the purposes of section 60L of the
Land Use Planning and
Approvals Act 1993, to be a
determination of the EPA
Director under section 60K(3) of
that Act that the EPA Board will
not undertake an environmental
impact assessment of the project;
and
(c) the EPA Board is not to
undertake an environmental
impact assessment of the project.
(7) If a project to which this section applies
is referred to the Board under
subsection (3)(c) -
(a) section 60L(8) and (9), and
section 60U(2), of the Land Use
Planning and Approvals Act 1993
do not apply in relation to the
project; and
(b) for the purposes of
sections 60S(4)(a) and 60T(4)(e)
of the Land Use Planning and
Approvals Act 1993, a notice, or a
relevant notice, given under
section 27AC(2)(c) or
section 42M(2) to the Panel in
relation to the activity is to be
taken to be a notice given to the
Panel under section 60L(8) of
that Act.
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(8) If the Board has directed the Panel, in a
notice under section 27AC(2)(c), to
refuse to grant a permit in relation to a
project -
(a) sections 60N, 60O, 60P, 60Q,
60R and 60S and 60T(3) of the
Land Use Planning and
Approvals Act 1993 do not apply
in relation to the project; and
(b) the Panel is, as soon as
practicable after receiving the
notice, to comply with section
60T of the Land Use Planning
and Approvals Act 1993 in
relation to the project.
27AC. Directions in relation to permits in respect of
EL activities
(1) In this section -
Commission means the Tasmanian
Planning Commission established
under the Tasmanian Planning
Commission Act 1997;
Panel, in relation to an activity, means
the Development Assessment
Panel established under section
60M of the Land Use Planning
and Approvals Act 1993 in
relation to the activity;
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permit means a permit, or special
permit, under the Land Use
Planning and Approvals Act
1993.
(2) As soon as practicable after the Board
has decided under section 42K or
section 42Q to refuse to grant or vary an
environmental licence in relation to an
activity -
(a) to which relates an application,
referred to the Board under
section 25, including an
application to which section 25A
relates, the Board must, by notice
to the planning authority, direct
the planning authority; or
(b) referred to in an application to
which section 25A relates, the
Board must, by notice to the
Commission, direct the
Commission; or
(c) to which section 27AB or
section 27B(1A) relates, the
Board must, by notice to the
Panel, direct the Panel -
to refuse to grant a permit in relation to
the activity or the project, as the case
may be.
(3) If the Board has, under subsection (2),
directed a planning authority, the
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Commission or a Panel to refuse to grant
a permit in relation to an activity or the
project, the planning authority, the
Commission, or the Panel, as the case
may be -
(a) must refuse under the Land Use
Planning and Approvals Act 1993
to grant a permit in relation to the
activity or the project; and
(b) must notify the Board of its
decision to refuse to grant a
permit.
(4) If the Board, under section 42M(2) or
section 42R(1), gives a relevant notice, to
a planning authority, the Commission or
a Panel, specifying that the Board has
granted or varied an environmental
licence in relation to an activity, the
planning authority, the Commission, or
the Panel, as the case may be, must not
impose on a permit in relation to the
activity a condition or restriction which
is inconsistent with, or extends or
restricts the operation of, a condition or
restriction imposed on the licence.
(5) If a planning authority, the Commission
or a Panel grants a permit in relation to
an activity to which section 25, 25A or
27AB relates, the planning authority,
Commission, or Panel, respectively,
must, within 7 days, notify the Board of
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the grant of the permit and provide to the
Board a copy of the permit.
27AD. Minor variations of planning permit in
relation to EL activities
(1) If a permit is granted under the Land Use
Planning and Approvals Act 1993 in
relation to an EL activity, the permit
must not be amended under section 43 or
56 of that Act without the approval of the
Board.
(2) A planning authority may apply to the
Board for approval to amend under
section 43 or 56 of the Land Use
Planning and Approvals Act 1993 a
permit in relation to an EL activity.
(3) As soon as practicable after receiving an
application under subsection (2) in
relation to a activity, the Board must
notify the planning authority whether the
Board approves, or refuses to approve,
the amendment, under section 43 or 56 of
the Land Use Planning and Approvals
Act 1993, of a permit in relation to the
activity.
11. Section 27A amended (Classes of assessment)
Section 27A(1) of the Principal Act is amended
by omitting "section 25 or 27" and substituting
"section 25, 27 or 27AA".
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12. Section 27B amended (Notice of intent)
Section 27B of the Principal Act is amended by
inserting after subsection (1) the following
subsection:
(1A) If a notice of intent lodged under
subsection (1) relates to an EL activity -
(a) the Board, if the activity to which
the notice of intent refers -
(i) is not an activity to which
subparagraph (ii) applies,
must determine under
section 42K(2) whether to
refuse to grant an
environmental licence in
relation to the activity; or
(ii) relates to a proposed
expansion, intensification
or modification of an
activity that is carried out
under an environmental
licence, must determine
under section 42Q(2)
whether to refuse to vary
an environmental licence
in relation to the activity;
and
(b) the Board, if it refuses under
section 42K(2) or section 42Q(2)
to grant or vary an environmental
licence in relation to the activity,
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is not to take any further action
under this Division in relation to
the project to which the activity
relates.
13. Section 27C amended (Board to advise of proposed
class of assessment)
Section 27C of the Principal Act is amended as
follows:
(a) by inserting ", except if section 27AA
applies," after "and";
(b) by omitting from paragraph (c)
"section 27(1) or (2)." and substituting
"section 27(1) or (2), section 27AA(1),
section 42I or section 42O.".
14. Section 27G amended (Periods for advertising of
applications and proposals)
Section 27G(1)(b) of the Principal Act is
amended by inserting "or section 27AA or that is
a proposal in an application referred to the Board
under section 42I(2) or 42O(1) or (5)" after
"(2)".
15. Section 27H amended (Period for completion of
assessment)
Section 27H(1) of the Principal Act is amended
by inserting "or section 27AA or that is a
proposal in an application referred to the Board
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under section 42I(2) or 42O(1) or (5), the Board
must complete its assessment" after "(2)".
16. Section 29 amended (Effect of environmental
agreements)
Section 29(3) of the Principal Act is amended by
inserting ", an environmental licence" after
"order".
17. Section 35 amended (Financial assurance to secure
compliance with Act)
Section 35(1) of the Principal Act is amended by
inserting after paragraph (d) the following
paragraph:
(da) complying with any conditions or
restrictions imposed on an environmental
licence held by the person; or
18. Part 3, Division 8 inserted
After section 42A of the Principal Act, the
following Division is inserted in Part 3:
Division 8 - Environmental licences
Subdivision 1 - Interpretation and offences
42B. Interpretation of Division 8
In this Division -
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associate, in relation to another
person, means -
(a) a person who holds or
will hold any relevant
financial interest, or is or
will be entitled to exercise
any relevant power
(whether in their own
right or on behalf of any
other person), in a
business of the other
person and, by virtue of
that interest or power, is
able to, or will be able to,
exercise a significant
influence over or in
respect of the
management or operation
of that business; or
(b) a person who holds or
will hold any relevant
position (whether in their
own right or on behalf of
any other person) in a
business of the other
person; or
(c) a person who is a relative
of the other person;
exemption permit means -
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(a) a permit issued under
section 12 or 14 of the
Living Marine Resources
Management Act 1995; or
(b) a permit issued under
section 172 of the Inland
Fisheries Act 1995 -
that authorises, whether expressly
or impliedly, the carrying out of
finfish farming;
existing authorisation, in relation to
an activity, means -
(a) a permit or a special
permit under which the
activity is authorised to be
carried out; or
(b) an exemption permit
under which the activity is
expressly or impliedly
authorised to be carried
out; or
(c) an order under the State
Policies and Projects Act
1993 under which the
activity is authorised to be
carried out; or
(d) a marine farming licence
under which the activity is
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authorised to be carried
out; or
(e) a fish farm licence under
which the activity is
authorised to be carried
out; or
(f) an environment protection
notice -
(i) that is issued
under
section 44(1)
(other than
section 44(1)(d))
or section 44(2)
(other than
section 44(2)(d));
and
(ii) that is an
environment
protection notice
under which the
activity is
expressly or
impliedly
authorised to be
carried out;
holder of an environmental licence,
in relation to an environmental
licence, means the person to
whom -
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(a) the licence has been
granted or, if the licence
has been transferred, to
whom the licence has
been transferred; and
(b) the licence document in
relation to the licence has
been issued under
section 42ZB;
land includes any water situated on
land;
permit means a permit under the Land
Use Planning and Approvals Act
1993;
relative, of a person, means -
(a) the spouse, parent, child
or sibling (whether of the
full or half blood) of the
person; or
(b) the person with whom the
first-mentioned person is
in a personal relationship
within the meaning of the
Relationships Act 2003;
relevant financial interest, in relation
to a business, means -
(a) any share in the capital of
the business; or
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(b) any entitlement to receive
any income derived from
the business;
relevant position, in relation to a
business, means the position of
director, manager or other
executive position or secretary,
however that position is
designated in that business;
relevant power means any power,
whether exercisable by voting or
otherwise and whether
exercisable alone or in
association with others -
(a) to participate in a
directorial, managerial or
executive decision; or
(b) to elect or appoint any
person to any relevant
position;
special permit means a special permit
under the Land Use Planning and
Approvals Act 1993;
vary, in relation to an environmental
licence, means to -
(a) vary the conditions or
restrictions imposed on
the licence, by -
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(i) revoking a
condition or
restriction
imposed on the
licence; or
(ii) varying a
condition or
restriction
imposed on the
licence; or
(iii) imposing a
condition or
restriction on the
licence; or
(b) vary the period for which
a licence is to remain in
force; or
(c) add to, alter or restrict the
activities that may be
carried out under the
licence; or
(d) alter the area of land, or
the area of State waters, to
which the licence relates;
or
(e) vary the licence so that an
expansion, intensification
or modification of an
activity is expressly
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authorised to be carried
out under the licence.
42C. Offences relating to licences
(1) A person must not carry out an EL
activity unless the person is authorised
under an environmental licence to do so.
Penalty: In the case of -
(a) a body corporate, a fine
not exceeding 1 000
penalty units; or
(b) an individual, a fine not
exceeding 500 penalty
units or imprisonment for
a term not exceeding 12
months, or both.
(2) Subsection (1) does not apply in respect
of a person in relation to an activity if the
activity is expressly or impliedly
authorised to be carried out under an
environment protection notice.
(3) Subsection (1) does not apply in respect
of a person in relation to an activity if
there is no environmental licence in force
in relation to the activity and the person
was, immediately before the
commencement of this section -
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(a) carrying out the activity under an
existing authorisation; or
(b) carrying out the activity and -
(i) no permit, or special
permit, is required under
the Land Use Planning
and Approvals Act 1993
in relation to the activity;
and
(ii) no marine farming licence
is required in relation to
the activity; and
(iii) no fish farm licence is
required in relation to the
activity.
(4) A person who carries out an activity to
which an environmental licence relates
must not contravene -
(a) a condition or restriction imposed
on the licence; or
(b) a condition or restriction of a
notice, issued under
section 42ZH(2), of the approval
of a surrender of the licence.
Penalty: In the case of -
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(a) a body corporate, a fine
not exceeding 1 000
penalty units; or
(b) an individual, a fine not
exceeding 500 penalty
units or imprisonment for
a term not exceeding 12
months, or both.
(5) A court must, in relation to an offence
under subsection (4) in respect of a
contravention of a condition or restriction
imposed on an environmental licence,
impose a special penalty of an amount -
(a) prescribed by the regulations; or
(b) calculated in accordance with a
method prescribed by the
regulations.
(6) A special penalty imposed under
subsection (5) is in addition to a fine, if
any, imposed under subsection (4).
(7) Regulations for the purposes of
subsection (5) may prescribe different
amounts, or different methods, that are to
apply according to circumstances
specified in the regulations.
(8) The holder of an environmental licence
must not expand, intensify or modify the
activity to which the licence relates
except if -
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(a) the expansion, intensification or
modification -
(i) is expressly authorised
under the environmental
licence, including the
licence as varied under
Subdivision 4, and does
not contravene the
conditions or restrictions
imposed on the licence; or
(ii) is expressly authorised
under an environment
protection notice; or
(b) the Board has determined under
section 25(1DAB) that the
expansion, intensification or
modification of the activity is not
environmentally significant.
Penalty: In the case of -
(a) a body corporate, a fine
not exceeding 1 000
penalty units; or
(b) an individual, a fine not
exceeding 500 penalty
units or imprisonment for
a term not exceeding 12
months, or both.
(9) The holder of an environmental licence
must not -
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(a) cease to carry out an activity to
which the licence relates; or
(b) resume an activity to which the
licence relates -
unless -
(c) the person, before ceasing to
carry out the activity or resuming
the activity, notified the Director
of the person's intention to cease
or resume the activity,
respectively; or
(d) the cessation or resumption
occurs in pursuance of a notice
issued under section 42ZF(1) or
because the licence has ceased to
be suspended or cancelled; or
(e) the cessation or resumption
occurs in accordance with a
requirement of an environment
protection notice.
Penalty: Fine not exceeding 100 penalty
units.
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Subdivision 2 - Licences in relation to existing lawful
activities
42D. Persons to whom licences for existing lawful
activities may be granted
(1) A person is, on the day on which this
section commences, taken to have
applied under this subsection for an
environmental licence in relation to an
activity if the activity is an EL activity
and, immediately before that day -
(a) the person is the person to whom
the existing authorisation in
relation to the activity -
(i) was granted or issued, if
the person has not
lawfully transferred the
authorisation to another
person; or
(ii) was lawfully transferred
by a person to whom the
authorisation was granted
or issued or to whom the
authorisation was lawfully
transferred; or
(b) the person -
(i) is lawfully carrying out
the activity; and
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(ii) is a person authorised
under a permit or a
special permit to carry out
the activity; and
(iii) is a person whom the
Director determines under
subsection (2) to be the
person at whose direction
the activity is being
carried out; or
(c) each of the following
subparagraphs applies in relation
to the activity:
(i) the person is lawfully
carrying out the activity;
(ii) the person is a person to
whom, if an existing
authorisation (other than
an existing authorisation
referred to in
paragraph (b)) were to be
granted or issued to a
person in relation to the
activity, the authorisation
would have been granted
or issued or is a person
whom the Director
determines under
subsection (2) to be the
person at whose direction
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the activity is being
carried out;
(iii) no permit, or special
permit, was required
under the Land Use
Planning and Approvals
Act 1993 in relation to the
activity;
(iv) no fish farm licence or
marine farming licence
was required to be held by
the person in relation to
the activity.
(2) The Director may determine, for the
purposes of subsection (1)(b)(iii) or
(c)(ii), a person to be the person at whose
direction an activity, that is being
lawfully carried out under a permit or a
special permit, is being carried out
immediately before the day on which this
section commences.
(3) A person is, on the day on which this
section commences, taken to have
applied under this subsection for an
environmental licence in relation to an
activity if the activity is an EL activity
and, immediately before the day on
which this section commences -
(a) there is an existing authorisation,
consisting of a marine farming
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licence, in relation to the activity;
and
(b) there is a lease under Part 4 of the
Marine Farming Planning Act
1995 in relation to the activity;
and
(c) the person holds under Part 4 of
the Marine Farming Planning Act
1995 a sub-lease of the lease
referred to in paragraph (b); and
(d) the person is carrying out the
activity under the sub-lease.
42E. Grant of licences in relation to existing
lawful activities
(1) The Director must grant, to a person who
is taken to have applied under
section 42D for an environmental licence
in relation to an activity, an
environmental licence in relation to the
activity.
(2) An environmental licence in relation to
an activity may not be granted under
subsection (1) to more than one person
who is to hold the licence, unless the
persons comprise a trust that is to hold
the licence.
(3) If 2 or more persons are to be taken to
have applied under section 42D for an
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environmental licence in relation to the
same activity -
(a) the persons may, by notice to the
Director, nominate which of the
persons is to be the person to
whom the licence is to be
granted; and
(b) the Director is to grant under
subsection (1) an environmental
licence in relation to the activity
to the person so nominated.
(4) An environmental licence may be
granted under subsection (1) in relation
to an activity -
(a) that is to be conducted at more
than one location; and
(b) that is conducted under more than
one existing authorisation in
relation to the activity -
but only if the prescribed criteria are
satisfied.
(5) Subject to subsection (6), the Director
may grant an environmental licence
under subsection (1) for a period
determined by the Director or determine
that the licence is granted for an
unlimited period.
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(6) If an environmental licence is granted
under subsection (1) in relation to an
activity to which relates an existing
authorisation that is to expire on a day,
the Director must determine under
subsection (5) to grant the licence for a
period that expires on the same day.
(7) Subsection (6) does not apply in relation
to an environmental licence if -
(a) the environmental licence is, in
accordance with
subsection (4)(b), granted under
subsection (1) in relation to an
activity that is conducted under
more than one existing
authorisation in relation to the
activity; and
(b) the existing authorisations are to
expire on different days.
(8) The Director must notify a person to
whom an environmental licence has been
granted under subsection (1) of -
(a) the grant of the licence; and
(b) any conditions or restrictions that
are imposed on the licence and
the reasons for imposing them;
and
(c) the rights of the person under
Subdivision 9 to appeal to the
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Appeal Tribunal in relation to a
decision made by the Director
under this section.
42F. Conditions of licences in relation to existing
lawful activities
(1) Subject to section 42Z, the Director may
impose conditions or restrictions, or both,
on an environmental licence granted
under section 42E(1).
(2) The conditions or restrictions imposed, in
accordance with subsection (1), on an
environmental licence granted under
section 42E(1) in relation to an activity
are to include, but are not limited to
including, conditions or restrictions -
(a) that are substantially the same as
the conditions or restrictions, that
relate to the environment, that
were imposed on the existing
authorisation in relation to the
activity; or
(b) that, where the existing
authorisation was an environment
protection notice, are
substantially the same as the
measures or requirements
imposed by that notice.
(3) A condition or restriction that -
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(a) is imposed, in accordance with
subsection (1), on an
environmental licence in relation
to an activity; and
(b) is not a condition, or restriction,
(a compulsory provision) that is
required under subsection (2) to
be imposed on the licence -
may not be of substantially the same
effect as, and relate to the same biomass,
product containing finfish, raw material,
water, source of energy or pollutant as, a
compulsory provision.
(4) Subsection (3) does not apply in relation
to a condition, referred to in
section 42Z(2)(m), that is imposed on a
licence in accordance with
subsection (1).
(5) If -
(a) the environmental licence is, in
accordance with
section 42E(4)(b), granted in
relation to an activity that is
conducted under more than one
existing authorisation in relation
to the activity; and
(b) the conditions or restrictions
imposed on the existing
authorisations are not consistent -
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subsection (6) applies, and
subsections (2) and (3) do not apply, in
relation to the licence.
(6) Without limiting the generality of
subsection (1), if this subsection applies
in relation to an environmental licence -
(a) the conditions or restrictions
imposed, in accordance with
subsection (1), on an
environmental licence, may
include any of the conditions or
restrictions that were specified in,
or imposed by, any of the existing
authorisations in relation to the
activity to which the licence
relates; and
(b) any other condition or restriction,
not imposed in accordance with
paragraph (a), may not be of
substantially the same effect as,
and relate to the same biomass,
product containing finfish, raw
material, water, source of energy
or pollutant as, a condition or
restriction imposed in accordance
with paragraph (a).
42G. Effect of decision to grant licence in relation
to existing authorisations
(1) Subsection (2) applies in relation to a
permit or a special permit, if -
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(a) immediately before the day on
which this section commences, a
person is carrying out an EL
activity under the permit or
special permit; and
(b) an environmental licence is
issued in relation to the EL
activity.
(2) If this subsection applies in relation to a
permit or special permit -
(a) a condition or restriction imposed
on the permit or special permit by
virtue of -
(i) a direction under
section 25(5) of this Act,
as in force before the day
on which this section
commences; or
(ii) section 60L of the Land
Use Planning and
Approvals Act 1993 as in
force before the day on
which this section
commences -
is void on and from the day on
which an environmental licence is
issued in relation to the activity;
and
(b) any -
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(i) condition or restriction of
the permit or special
permit that is included by
a variation to the permit
specified in any
environment protection
notice issued under
section 44(1)(d) or
section 44(2)(d); and
(ii) other variation, to a
condition or restriction of
the permit or special
permit, that is specified in
any environment
protection notice issued
under section 44(1)(d) or
section 44(2)(d) -
is void on and from the day on
which an environmental licence is
issued in relation to the activity;
and
(c) any environment protection
notice, issued under
section 44(1)(d) or
section 44(2)(d), that varies a
condition or restriction of the
permit or special permit that is in
force in relation to the activity, is
taken to be revoked on and from
the day on which an
environmental licence is issued in
relation to the activity; and
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(d) any condition or restriction, of the
permit or special permit, that is
not referred to in paragraph (a) or
(b) and that -
(i) relates to the reduction,
minimisation or removal
of potential risk to the
environment; and
(ii) is inconsistent with a
condition or restriction of
an environmental licence
in relation to an activity -
is void on and from the day on
which an environmental licence is
issued in relation to the activity.
(3) If a person is, immediately before the day
on which this section commences,
carrying out an EL activity in accordance
with an exemption permit, then, on and
from the day on which an environmental
licence is issued in relation to the
activity, any condition or restriction of
the exemption permit that is inconsistent
with a condition or restriction of the
environmental licence is void.
(4) If a person is, immediately before the day
on which this section commences,
carrying out an EL activity that the
person is expressly or impliedly
authorised to carry out -
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(a) by an environment protection
notice issued under section 44(1)
(other than section 44(1)(d)); or
(b) by an environment protection
notice issued under section 44(2)
(other than section 44(2)(d)) -
the environment protection notice is
taken to be revoked on and from the day
on which an environmental licence is
issued in relation to the person.
(5) If a person is, immediately before the day
on which this section commences,
carrying out an EL activity in accordance
with a fish farm licence or a marine
farming licence, then, on and from the
day on which an environmental licence is
issued in relation to the person, a
condition or restriction of the fish farm
licence, or marine farming licence, that is
inconsistent with a condition or
restriction of the environmental licence is
void.
42H. Notification that existing authorisation is
void or condition inconsistent
(1) The Director may notify a person who,
immediately before a licence document,
in relation to an environmental licence
granted under section 42E in relation to
an activity, is issued to the person under
section 42ZB, was carrying out an
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activity under an existing authorisation in
relation to the activity -
(a) that the existing authorisation is
void; or
(b) that a condition or restriction of
an existing authorisation that, in
the opinion of the Director, is
inconsistent with a condition or
restriction imposed on the
environmental licence, is void.
(2) If the Director notifies a person under
subsection (1)(b) that a condition or
restriction of an existing authorisation is
void, the condition or restriction is void.
(3) Nothing in subsection (2) is to be taken
to have the effect that a condition or
restriction of an existing authorisation is
not void only because the person has not
been notified under subsection (1) that
the condition or restriction is void.
Subdivision 3 - Licences where no existing authority
42I. Applications for environmental licences
(1) A person may apply to the Director, in a
form approved by the Director, for an
environmental licence in relation to an
activity that is an EL activity.
(2) If -
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(a) an application is made under
subsection (1) for an
environmental licence in relation
to an activity that does not require
a permit; and
(b) either -
(i) an application has been
made under the Living
Marine Resources
Management Act 1995 for
a marine farming licence
in relation to the activity;
or
(ii) there is a permit, issued
under section 12 or 14 of
the Living Marine
Resources Management
Act 1995, that is in force
in relation to the activity -
the Director may refuse to accept the
application under subsection (1) and
instead refer the application to the Board
for assessment under section 27AA.
(3) A decision by the Director under
subsection (2) as to whether to refer an
application to the Board for assessment
under section 27AA is to be made in
accordance with the prescribed criteria as
to when the Director must, or must not,
refer an application to the Board.
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(4) If an application is made under
subsection (1) by the holder of a sub-
lease of a lease under Part 4 of the
Marine Farming Planning Act 1995, the
reference in subsection (2)(b)(i), to an
application made under the Living
Marine Resources Management Act 1995
for a marine farming licence in relation
to an activity, includes a reference to an
application made under the Living
Marine Resources Management Act 1995
for a marine farming licence that is to
relate in whole or in part to an area of
land, or an area of State waters, to which
the application under subsection (1)
relates, whether or not the marine
farming licence is to relate to the same
activity.
(5) The Director must refuse to accept an
application under subsection (1) in
relation to an EL activity if the activity is
an activity in relation to which a lease is
required under Part 4 of the Marine
Farming Planning Act 1995 and either -
(a) the lease has not been granted; or
(b) the applicant is not the holder of a
permit under section 12 or 14 of
the Living Marine Resources
Management Act 1995 in relation
to the activity.
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(6) The Director must refuse to accept an
application under subsection (1) from a
person if the application, or the activity
to which the application relates, has
been, or is required to be, referred to the
Board under section 25(1), section 25A
or section 27AA(1).
(7) The Director may refuse to accept an
application under subsection (1) from a
person in relation to an EL activity if -
(a) the proposal to carry out the
activity has been declared, or, in
the opinion of the Director, is
likely to be declared, to be a
project of regional significance
under the Land Use Planning and
Approvals Act 1993; or
(b) the proposal to carry out the
activity has been declared, or, in
the opinion of the Director, is
likely to be declared, to be a
project of state significance under
the State Policies and Projects
Act 1993.
42J. Grant of licence by Director
(1) If an application has been made to the
Director under section 42I(1) in relation
to an activity and the Director has not
refused under that section to accept the
application, the Director must -
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(a) grant an environmental licence in
relation to the activity; or
(b) refuse to grant an environmental
licence in relation to the activity.
(2) Subject to section 42L, the Director may,
under subsection (1), grant to a person an
environmental licence in relation to an
activity if the Director is satisfied that it
is appropriate to do so.
(3) An environmental licence may be
granted under subsection (1) in relation
to an activity that is to be conducted at
more than one location, but only if the
prescribed criteria are satisfied.
(4) The Director may under subsection (1)
only grant, in relation to an application
under section 42I(1), an environmental
licence that is to be held by more than
one person, if the persons to whom the
licence is to be granted will hold the
licence as trustees.
(5) Subject to section 42Z, the Director may
impose conditions or restrictions, or both,
on an environmental licence granted by
the Director under subsection (1).
(6) The Director may grant an environmental
licence under subsection (1) for a period
determined by the Director or determine
that the licence is granted for an
unlimited period.
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42K. Grant of licence by Board
(1) In this section -
relevant application means an
application, in relation to an EL
activity, that -
(a) is an application, or
relates to an activity,
referred to the Board -
(i) under section 25
or 27AA; or
(ii) under
section 42I(2); and
(b) is not a relevant
application within the
meaning of
section 42Q(1);
relevant project means a project that -
(a) is -
(i) referred to the
Board under
section 27AB(3)(c
); or
(ii) a project, in
relation to an EL
activity, in relation
to which a notice
of intent is lodged
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under section 27B;
and
(b) is not a relevant project
within the meaning of
section 42Q(1).
(2) The Board may -
(a) within 28 days after a relevant
application, or a relevant project,
in relation to an EL activity is
referred to the Board under
section 25, section 27AA,
section 42I(2) or
section 27AB(3)(c); or
(b) after a notice of intent in relation
to a relevant project, in relation to
an EL activity, is lodged under
section 27B -
refuse, on a ground referred to in
section 42L(1) or (2), to grant an
environmental licence in relation to the
activity.
(3) As soon as practicable after the Board
has completed under section 25, 25A or
27AA, or section 60M of the Land Use
Planning and Approvals Act 1993, as the
case may be, an assessment in relation to
an EL activity, the Board must -
(a) grant an environmental licence in
relation to the activity; or
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(b) refuse to grant an environmental
licence in relation to the activity.
(4) Subject to section 42L, the Board may,
under subsection (3), grant to a person an
environmental licence in relation to an
activity if the Board is satisfied that it is
appropriate to do so.
(5) An environmental licence may be
granted under subsection (3) in relation
to an activity that is to be conducted at
more than one location, but only if the
prescribed criteria are satisfied.
(6) The Board may only grant an
environmental licence under
subsection (3) that is to be held by more
than one person, if the persons to whom
the licence is to be granted will hold the
licence as trustees.
(7) Subject to section 42Z, the Board may
impose conditions or restrictions, or both,
on an environmental licence granted by
the Board under this section.
(8) The Board may grant an environmental
licence under this section for a period
determined by the Board or determine
that the licence is granted for an
unlimited period.
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42L. Refusal by Director or Board to grant
licence
(1) The Director or the Board must refuse
under section 42J or 42K to grant to a
person an environmental licence in
relation to an activity if the Director or
the Board, respectively, is satisfied that
the person is, at the time of the
application, disqualified under
section 42ZF(8) from holding an
environmental licence.
(2) The Director or the Board may refuse
under section 42J or 42K to grant to a
person an environmental licence in
relation to an activity if the Director or
the Board, respectively, is satisfied that -
(a) the person has contravened this
Act; or
(b) the person has, within the 5-year
period before the day on which
the licence is granted, been
convicted of an offence, which
the Director, or the Board,
respectively, considers to be an
offence relevant to the holding of
the licence, against -
(i) this Act; or
(ii) any other Act; or
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(iii) a law of another State, a
Territory, or the
Commonwealth, that
relates to the protection of
the environment; or
(c) the person is not a fit and proper
person to hold an environmental
licence; or
(d) an associate of the person has,
within the 5-year period before
the day on which the licence is
granted, been convicted of an
offence, which the Director, or
the Board, respectively, considers
to be an offence relevant to the
holding of the licence, against -
(i) this Act; or
(ii) any other Act; or
(iii) a law of another State, a
Territory, or the
Commonwealth, that
relates to the protection of
the environment; or
(e) where the person is a natural
person, the person is not an adult;
or
(f) the person has not paid any fees
that are due and payable under
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this Act, in relation to the licence,
by the person.
(3) The Director or the Board may determine
for the purposes of subsection (2)(c) that
a person is not a fit and proper person to
hold an environmental licence in relation
to an activity if the Director or the Board,
respectively, is reasonably of the opinion
that the person, or an associate of the
person, was an associate in relation to
another person (including a body
corporate) who or that -
(a) had -
(i) committed an offence
against a provision, of a
law, relating to protection
of the environment; or
(ii) failed to comply with a
duty, including a duty of
care, imposed on the
person in relation to
protection of the
environment; or
(iii) caused environmental
harm; and
(b) had sought to be declared
bankrupt, or to be deregistered as
a corporation under the
Corporations Law, for the
purpose of avoiding -
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(i) liability for the offence,
for failing to comply with
the duty or for causing the
environmental harm; or
(ii) liability to pay a fine,
penalty, including a civil
penalty, or damages, in
relation to the offence, the
failure to comply with the
duty or the causing of
environmental harm.
(4) Subsection (3) does not limit the
circumstances in which the Director or
the Board may determine that, for the
purposes of subsection (2)(c), a person is
not a fit and proper person to hold an
environmental licence.
(5) Subsections (1) and (2) do not limit the
circumstances in which the Director or
the Board may refuse under section 42J
or 42K to grant an environmental licence.
42M. Notifications of grant or refusal of licences
or refusal to accept application for licences
(1) The Director must, as soon as practicable
after deciding under section 42J to grant,
or to refuse to grant, an environmental
licence to a person, give a relevant notice
to the person.
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(2) The Board must, as soon as practicable
after deciding under section 42K to grant,
or refuse to grant, an environmental
licence in relation to an EL activity -
(a) to which section 25, 25A, 27AA
or 27AB relates, give a relevant
notice to the planning authority;
and
(b) to which section 27AB relates,
give a relevant notice to the Panel
established under section 60M of
the Land Use Planning and
Approvals Act 1993 in relation to
the activity; and
(c) to which section 25A relates, give
a relevant notice to the
Commission within the meaning
of the Land Use Planning and
Approvals Act 1993; and
(d) to which section 25, 25A or
27AA relates, give a relevant
notice to the person to whom the
licence is granted or to whom, if
the Board had not refused to grant
the licence, the licence would
have been granted; and
(e) to which section 27AB relates,
give a relevant notice to the
proponent of the project to which
the decision relates.
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(3) The Board must, as soon as practicable
after deciding under section 42K to grant,
or refuse to grant, an environmental
licence in relation to an EL activity after
completing an assessment referred to in
section 42K(2)(a), give a relevant notice
to each person who has made, in relation
to the activity, a representation under
section 27G(2) or the Land Use Planning
and Approvals Act 1993.
(4) If the Director refuses under section 42I
to accept an application for an
environmental licence, the Director must
give a relevant notice to the person who
made the application.
(5) For the purposes of this section, a
relevant notice, in relation to a decision,
to be given to a person or body is a
notice -
(a) that the decision has been made,
the terms of the decision and the
reasons for making the decision;
and
(b) of any conditions or restrictions
that have been imposed on an
environmental licence in
accordance with the decision and
the reasons for imposing them;
and
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(c) if the person is a person who has
a right under Subdivision 9 to
appeal to the Appeal Tribunal in
relation to the decision, of that
person's right under
Subdivision 9 to appeal to the
Appeal Tribunal in relation to the
decision.
Subdivision 4 - Variation of licences
42N. Variation of licence by Director at holder's
request
(1) The holder of an environmental licence
granted by the Board or the Director may
apply to the Director, in a form approved
by the Director, for a variation of the
licence.
(2) The Director must refuse to accept an
application to vary an environmental
licence so as to authorise a proposed
expansion, intensification or
modification of an activity (a relevant
alteration) to be carried out under the
licence if the Director is of the opinion
that a permit, or a special permit, is
required under the Land Use Planning
and Approvals Act 1993 in relation to the
relevant alteration and such a permit has
not been granted.
(3) The Director must, on receiving an
application under subsection (1) from the
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holder of an environmental licence, if the
Director has not refused, under
subsection (2), to accept the application -
(a) vary the licence, unless the
Director must refer the
application under section 42O to
the Board for assessment under
section 27AA; or
(b) refuse to vary the licence, unless
the Director must refer the
application under section 42O to
the Board for assessment under
section 27AA; or
(c) refer the application under
section 42O to the Board for
assessment under section 27AA.
(4) The Director may, in accordance with
subsection (3), vary an environmental
licence under that subsection if the
Director is satisfied that it is appropriate
to do so.
(5) The Director may, in accordance with
subsection (3), refuse to vary an
environmental licence under that
subsection if the Director is satisfied
that -
(a) the holder of the environmental
licence has contravened this Act;
and
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(b) the holder of the environmental
licence has, within the 5-year
period before the day on which
the licence is varied, been
convicted of an offence, which
the Director considers to be an
offence relevant to the holding of
the licence, against -
(i) this Act; or
(ii) any other Act; or
(iii) a law of another State, a
Territory, or the
Commonwealth, that
relates to the protection of
the environment; and
(c) the holder of the environmental
licence has not paid any fees that
are due and payable under this
Act, in relation to the licence, by
the holder of the licence.
(6) Subsection (5) does not limit the
circumstances in which the Director may
refuse under subsection (3) to vary an
environmental licence.
(7) The Director must notify the holder of an
environmental licence of -
(a) a decision by the Director -
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(i) to refuse to accept an
application under this
section in relation to the
licence; or
(ii) to vary, or to refuse to
vary, a licence under this
section; or
(iii) to refer to the Board,
under section 42O, an
application under this
section in relation to the
licence; and
(b) the reasons for the decision; and
(c) if the decision is a decision to
vary the licence, the details of
each variation and the reason for
each variation; and
(d) the rights of the person under
Subdivision 9 to appeal to the
Appeal Tribunal in relation to a
decision made by the Director
under this section.
42O. Referral to Board of certain applications for
variation
(1) If -
(a) an application is made under
section 42N(1) for a variation of
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an environmental licence in
relation to an EL activity that
does not require a permit; and
(b) an application has been made
under the Living Marine
Resources Management Act 1995
for a variation of a marine
farming licence in relation to the
activity -
the Director may, instead of accepting
the application, refer the application to
the Board for assessment under
section 27AA.
(2) A decision by the Director under
subsection (1) as to whether to refer an
application to the Board for assessment
under section 27AA is to be made in
accordance with the prescribed criteria as
to when the Director must, or must not,
refer an application to the Board.
(3) If -
(a) an application is made under
section 42N(1) for a variation of
an environmental licence in
relation to an EL activity that
does not require a permit; and
(b) either -
(i) an application has not
been made under the
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Living Marine Resources
Management Act 1995 for
a variation of a marine
farming licence in relation
to the activity and such an
application is not required
to be made under that
Act; or
(ii) the application under
section 42N(1) is not an
application to which
subparagraph (i), or
subsection (1), applies -
the Director must determine whether the
variation to which the application under
section 42N(1) relates is a minor
variation or a major variation.
(4) In making a determination under
subsection (3) as to whether the variation
to which an application under
section 42N(1) relates is a minor
variation or a major variation, the
Director -
(a) must take into consideration the
characteristics set out in Schedule
5, as if a reference in that
Schedule to a project or an
activity were a reference to the
proposed variation; and
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(b) if the Director is of the opinion
that the variation has class A
characteristics under that
Schedule, must determine that the
variation is a minor variation; and
(c) if the Director is of the opinion
that the variation has class 2B or
class 2C characteristics under that
Schedule, must determine that the
variation is a major variation.
(5) If the Director determines under
subsection (3) that the variation to which
an application under section 42N(1)
relates is a major variation, the Director,
instead of accepting the application, must
refer the application to the Board for
assessment under section 27AA.
42P. Variation of licence on Director's initiative
(1) The Director may, on his or her own
initiative, vary an environmental licence,
including a licence granted by the Board.
(2) The Director may only vary an
environmental licence under
subsection (1) if the Director -
(a) has, at least 14 days before
varying the licence, issued a
notice to the holder of the
environmental licence -
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(i) specifying the proposed
variation; and
(ii) specifying the reasons
why the Director proposes
to vary the licence; and
(iii) inviting the holder of the
environmental licence to
provide to the Director,
within 14 days after
receiving the notice,
written reasons as to why
the licence ought not be
varied as proposed; and
(b) has considered any written
reasons provided to the Director
under subsection (3).
(3) The holder of an environmental licence
to whom a notice is issued under
subsection (2) may provide to the
Director, within 14 days after receiving
the notice, written reasons as to why the
licence ought not be varied as proposed.
(4) The Director must notify the holder of an
environmental licence of -
(a) a decision by the Director to vary
the licence under this section; and
(b) the details of the variation and the
reason for the variation; and
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(c) the rights of the person under
Subdivision 9 to appeal to the
Appeal Tribunal in relation to a
decision made by the Director
under this section.
42Q. Variation by Board of licence
(1) In this section -
relevant application means -
(a) an application, referred to
the Board under
section 25 or 27AA, in
relation to a proposed
expansion, intensification
or modification of an
activity that is carried out
under an environmental
licence; and
(b) an application that is
referred to the Board by
the Director under
section 42O;
relevant assessment means an
assessment completed by the
Board -
(a) under section 25 or
27AA, or under section
60L of the Land Use
Planning and Approvals
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Act 1993, in relation to a
proposed expansion,
intensification or
modification of an
activity that is carried out
under an environmental
licence; or
(b) under section 27AA in
relation to an application
that is referred to the
Board by the Director
under section 42O;
relevant project means a project that -
(a) consists of a proposed
expansion, intensification
or modification of an
activity that is carried out
under an environmental
licence; and
(b) is referred to the Board
under section 27AB(3)(c)
or is a project, in relation
to an EL activity, in
relation to which a notice
of intent has been lodged
under section 27B.
(2) The Board may -
(a) within 28 days after a relevant
application, or a relevant project,
in relation to an EL activity is
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referred to the Board under
section 25, section 27AA,
section 27AB(3)(c) or
section 42O; or
(b) after a notice of intent in relation
to a relevant project, in relation to
an EL activity, is lodged under
section 27B -
refuse, on a ground referred to in
subsection (5), to vary an environmental
licence in relation to the activity.
(3) As soon as practicable after the Board
has completed a relevant assessment, the
Board must -
(a) vary an environmental licence in
relation to the activity; or
(b) refuse to vary an environmental
licence in relation to the activity.
(4) The Board may vary under subsection (3)
an environmental licence if the Board is
satisfied that it is appropriate to do so.
(5) The Board may, under subsection (2) or
subsection (3), refuse to vary an
environmental licence if the Board is
satisfied that -
(a) the holder of the environmental
licence has contravened this Act;
and
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(b) the holder of the environmental
licence has, within the 5-year
period before the day on which
the licence is varied, been
convicted of an offence, which
the Board considers to be an
offence relevant to the holding of
the licence, against -
(i) this Act; or
(ii) any other Act; or
(iii) a law of another State, a
Territory, or the
Commonwealth, that
relates to the protection of
the environment; and
(c) the holder of the environmental
licence has not paid any fees that
are due and payable under this
Act, in relation to the licence, by
the holder of the licence.
(6) Subsection (5) does not limit the
circumstances in which the Board may
refuse to vary an environmental licence
under subsection (3).
42R. Notice of decision by Board in relation to
variation
(1) The Board must, as soon as practicable
after making a decision under
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section 42Q(2) or (3) in relation to a
relevant application within the meaning
of section 42Q(1), give a relevant notice
to -
(a) the person who made the
application; and
(b) if the application is an application
to which section 25 or 25A
relates, the planning authority for
the area of land, or area of State
waters, to which the application
relates; and
(c) if the application is an application
to which section 25A relates, the
Commission.
(2) The Board must, as soon as practicable
after making a decision under
section 42Q(3) in relation to an EL
activity, give a relevant notice to each
person who has made a representation
under the Land Use Planning and
Approvals Act 1993 or section 27G(2) in
relation to the activity.
(3) For the purposes of this section, a
relevant notice, in relation to a decision,
to be given to a person or body is a
notice -
(a) specifying whether the Board has
varied, or refused to vary, the
environmental licence to which
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the decision relates and the
reasons for making the decision;
and
(b) if the decision is a decision to
vary an environmental licence,
specifying details of the variation
and the reason for the variation;
and
(c) if the person is a person who has
a right under Subdivision 9 to
appeal to the Appeal Tribunal in
relation to the decision, of the
person's right under
Subdivision 9 to appeal to the
Appeal Tribunal in relation to the
decision.
Subdivision 5 - Renewal of licences
42S. Applications for renewal of licences
(1) The holder of an environmental licence
that is in force for a period specified on
the licence, may apply to the Director, in
a form approved by the Director, for a
renewal of the environmental licence.
(2) An application under subsection (1) for
the renewal of an environmental licence
is invalid if it is not made before the
number of days, before the day on which
the licence expires, that is prescribed.
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(3) The Director, in his or her discretion,
may, despite subsection (2), accept an
application under subsection (1) for the
renewal of an environmental licence, if
the application is made before the day on
which the licence expires and, if the
Director so accepts the application, the
application is, despite subsection (2),
valid.
(4) If an application under subsection (1) for
the renewal of an environmental licence
is valid, the licence remains in force,
despite section 42ZC(5), until the holder
of the environmental licence is notified
under section 42T(9) of the decision of
the Director to renew, or to refuse to
renew, the licence.
42T. Renewal of licences on application
(1) If the Director receives under
section 42S(1) a valid application for the
renewal of an environmental licence, the
Director must -
(a) renew the environmental licence;
or
(b) refuse to renew the environmental
licence.
(2) Subject to this section, the Director may
renew under subsection (1) an
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environmental licence if the Director is
satisfied that it is appropriate to do so.
(3) The Director must refuse to renew an
environmental licence under
subsection (1) if, immediately before the
licence is renewed, the licence contained
a condition that the licence may not be
renewed.
(4) The Director may refuse to renew an
environmental licence under
subsection (1) if he or she is satisfied that
the applicant for renewal of the licence -
(a) has contravened the conditions
and restrictions of the licence in
the 5-year period immediately
before the application for renewal
of the licence is made; or
(b) has, within the 5-year period
before the day on which the
licence is renewed, been
convicted of an offence against -
(i) this Act; or
(ii) any other Act; or
(iii) a law of another State, a
Territory, or the
Commonwealth, that
relates to the protection of
the environment -
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which the Director considers to
be an offence relevant to the
holding of the licence; or
(c) is not a fit and proper person to
hold an environmental licence; or
(d) has not paid any fees that are due
and payable under this Act, in
relation to the licence, by the
person.
(5) Subsection (4) does not limit the
circumstances in which the Director may
refuse to vary an environmental licence.
(6) If, immediately before an environmental
licence is renewed under subsection (1),
the licence contained a condition limiting
the ability of the Director to renew the
licence, the Director may only renew the
licence under subsection (1) in
accordance with the condition.
(7) Subject to section 42Z, the Director may
impose conditions or restrictions, or both,
on an environmental licence renewed
under subsection (1).
(8) The Director may renew an
environmental licence under
subsection (1) for a period determined by
the Director or determine that the licence
is renewed for an unlimited period.
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(9) The Director must give notice, to the
person who applied for the renewal of an
environmental licence -
(a) of a decision by the Director to
renew, or to refuse to renew, the
environmental licence under this
section; and
(b) if the Director has refused to
renew the licence under this
section, of the reasons for
refusing to renew the licence; and
(c) of any conditions or restrictions
that are imposed on the licence as
renewed under subsection (1) and
the reasons for imposing them;
and
(d) of the rights of the person under
Subdivision 9 to appeal to the
Appeal Tribunal in relation to a
decision made by the Director
under this section.
42U. Renewal of licence on Director's own
initiative
(1) The Director may, on his or her own
initiative, renew an environmental
licence.
(2) The Director may renew an
environmental licence under
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subsection (1) whether or not the licence
has expired.
(3) The Director may only renew an
environmental licence under
subsection (1) if the Director is of the
opinion that it is necessary to do so to
ensure -
(a) that potential environmental harm
from the conduct of an activity
under, or purportedly under, the
licence before it is renewed, is
reduced; or
(b) the decommissioning of any
facilities on the area of land, or
the area of State waters, to which
the licence relates; or
(c) the rehabilitation of -
(i) the area of land, or the
area of State waters, to
which the licence, before
it was renewed, related; or
(ii) areas of land, or of State
waters, to which
environmental harm may
have been caused by the
conduct of the activity
under, or purportedly
under, the licence.
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(4) Subject to section 42Z, the Director may,
under subsection (1), impose conditions
or restrictions, or both, on an
environmental licence that is renewed.
(5) The Director may renew an
environmental licence under
subsection (1) for a period determined by
the Director or determine that the licence
is renewed for an unlimited period.
(6) The Director must give notice, to the
holder of an environmental licence, of -
(a) a decision by the Director to
renew the licence under this
section; and
(b) any conditions or restrictions that
are imposed on the licence
renewed under subsection (1) and
the reasons for imposing them;
and
(c) the rights of the person under
Subdivision 9 to appeal to the
Appeal Tribunal in relation to a
decision made by the Director
under this section.
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Subdivision 6 - Transfer of licences
42V. Transfer of licence only authorised if
approved
(1) The holder of an environmental licence
must not transfer, or purport to transfer,
the licence to another person.
(2) A transfer, or purported transfer, of an
environmental licence otherwise than by
the Director under section 42W(2) is
void and of no effect.
42W. Transfer of licences
(1) The holder of an environmental licence
may apply to the Director, in a form
approved by the Director, for the
Director to transfer the licence to another
person.
(2) The Director may, if he or she receives
an application under subsection (1) from
the holder of an environmental licence -
(a) transfer the licence to another
person; or
(b) refuse to transfer the licence to
another person.
(3) Subject to section 42X, the Director may
transfer under subsection (2) an
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environmental licence if the Director is
satisfied that it is appropriate to do so.
(4) Subject to section 42Z, the Director may
impose conditions or restrictions, or both,
on an environmental licence as
transferred under subsection (2).
(5) The Director may determine that an
environmental licence, when transferred
under subsection (2) -
(a) is to remain in force, subject to
this Act, for a period determined
by the Director and specified in
the licence document; or
(b) is to remain in force, subject to
this Act, for an unlimited period.
(6) The Director must notify a person who
has applied under subsection (1) for the
transfer of an environmental licence -
(a) of a decision by the Director to
transfer, or to refuse to transfer,
the licence under subsection (2);
and
(b) if the Director has refused to
transfer the licence under
subsection (2), of the reasons for
refusing to transfer the licence;
and
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(c) of any conditions or restrictions
that are imposed on the licence as
transferred under subsection (2)
and the reasons for imposing
them; and
(d) of the rights of the person under
Subdivision 9 to appeal to the
Appeal Tribunal in relation to a
decision made by the Director
under this section or
section 42Y(1).
42X. Refusal to transfer licence
(1) The Director must not transfer under
section 42W(2) an environmental licence
to another person if the licence is to be
held by more than one person, unless the
persons comprise a trust that is to hold
the licence.
(2) The Director must not transfer under
section 42W(2) an environmental licence
to another person if -
(a) the other person is a person to
whom a licence must not, under
section 42L(1), be granted; or
(b) the transfer of the licence would
be in contravention of a condition
or restriction of the licence to
which the application relates; or
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(c) the activity is an activity in
relation to which a lease is
required under Part 4 of the
Marine Farming Planning Act
1995 and either -
(i) the lease has not been
transferred under that Act
to the person to whom the
licence is to be
transferred; or
(ii) the person to whom the
licence is to be transferred
is not the holder of a
permit issued under
section 12 or 14 of the
Living Marine Resources
Management Act 1995 in
relation to the activity.
(3) The Director may refuse to transfer under
section 42W(2) an environmental licence
to a person if the person is a person in
relation to whom the Director may refuse
under section 42L(2) to grant an
environmental licence.
(4) The Director may refuse to transfer under
section 42W(2) an environmental licence
to another person if the holder of the
environmental licence, or the person to
whom the licence is to be transferred, has
not paid any fees that are due and
payable under this Act, in relation to an
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environmental licence, by the holder of
the licence.
(5) Subsections (1), (2), (3) and (4) do not
limit the circumstances in which the
Director may refuse to transfer an
environmental licence under
section 42W(2).
42Y. Director may require condition to be
satisfied before transfer
(1) The Director may, but is not required to,
agree to transfer an environmental
licence under section 42W(2) subject to
conditions or restrictions specified in the
agreement.
(2) If a condition or restriction is specified,
in accordance with subsection (1), in an
agreement to transfer an environmental
licence under section 42W(2), the
Director may refuse to transfer the
licence under section 42W(2) if the
condition or restriction has not been
complied with.
(3) A condition or restriction specified, in
accordance with subsection (1), in an
agreement to transfer an environmental
licence under section 42W(2), may relate
to the person to whom the licence is to be
transferred, the person from whom the
licence is to be transferred or any other
person.
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Subdivision 7 - General provisions
42Z. Conditions and restrictions of licences
(1) The conditions or restrictions that may be
imposed on an environmental licence as
granted, varied, transferred or renewed -
(a) by the Director, are the conditions
or restrictions that the Director
thinks fit to impose on the licence
and which, in the opinion of the
Director, will further the
objectives of this Act; and
(b) by the Board, are the conditions
or restrictions that the Board
thinks fit to impose on the licence
and which, in the opinion of the
Board, will further the objectives
of this Act.
(2) Without limiting the generality of
subsection (1), the conditions or
restrictions that may be imposed on an
environmental licence in relation to an
activity include the following:
(a) a condition or restriction limiting
the amount of biomass of finfish
that may be contained in or at the
facilities, or on the area of land,
or area of State waters, in, at or
on which the finfish farming is
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conducted, or is to be conducted,
under the licence;
(b) a condition or restriction limiting
the amount of finfish, or a
product containing finfish, that is
capable of being produced under
the licence;
(c) a condition or restriction limiting
the amount of raw materials
(including smolt) that may be
introduced into the facilities, or
an area of land, or an area of
State waters, in, at or on which
the finfish farming is conducted,
or is to be conducted, under the
licence;
(d) a condition or restriction limiting
the amount of water or energy
that may be used to conduct
finfish farming under the licence;
(e) a condition or restriction that -
(i) limits the amount of a
pollutant that may be
produced or emitted in the
course of the conduct of
an activity; or
(ii) prohibits the production
or emission of any
amount of a pollutant that
may be produced or
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emitted in the course of
the conduct of an activity;
or
(iii) limits the rate, or
concentration, or both, at
which a pollutant that
may be produced or
emitted in the course of
the conduct of an activity
may be produced or
emitted in the course of
the conduct of the
activity;
(f) a condition or restriction
requiring the holder of the
environmental licence to prepare,
and submit to the Director for
approval, an environmental
management plan in relation to
the conduct of the activity under
the licence;
(g) a condition or restriction
requiring the holder of the
environmental licence to
undertake monitoring of the
environmental effects of the
conduct of the activity under the
licence and to report the results of
that monitoring to the Director at
a time, or at times, specified in
the condition or restriction or by
the Director;
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(h) a condition or restriction
requiring that, if the conduct of
the activity under the licence
ceases, the licence holder must
ensure that the site is
decommissioned or rehabilitated
in accordance with the Director's
requirements;
(i) a condition or restriction
requiring the holder of the
environmental licence to
undertake such measures as are
specified in the licence to limit
the environmental effects of
traffic movements, or vessel
movements, to and from the area
of land, or area of State waters, to
which the licence applies;
(j) a condition or restriction that
gives effect to a State policy or an
environment protection policy;
(k) a condition that prevents or limits
the renewal of the licence;
(l) a condition or restriction to
secure compliance with the
general environmental duty;
(m) a condition or restriction -
(i) requiring the holder of the
licence to prepare and
submit to the Board a
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draft environmental
improvement programme;
and
(ii) requiring the holder of the
licence to comply with an
environmental
improvement programme,
approved by the Board
under section 40(4), that
is in force.
(3) If conditions of a kind referred to in
subsection (2)(m) are imposed on an
environmental licence -
(a) the draft environmental
improvement programme
prepared and submitted to the
Director in accordance with the
condition is to be treated as such
a programme prepared and
submitted to the Board under
section 39, and Division 7 applies
accordingly; and
(b) any requirements of the
environmental improvement
programme approved by the
Board under section 40(4) in
relation to the holder of the
licence are to be taken to be
conditions of the environmental
licence while the programme
remains in force; and
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(c) any activity undertaken in
accordance with the requirements
of the environmental
improvement programme
approved by the Board under
section 40(4) in relation to the
holder of the licence is not to be
taken for the purposes of this Act
to constitute an expansion,
intensification or modification of
an activity to which the
environmental licence relates.
(4) In determining the conditions and
restrictions, if any, to be imposed on an
environmental licence in relation to the
conduct of an activity to which a marine
farming development plan applies under
the Marine Farming Planning Act 1995,
the Director or the Board, as the case
may be, is to take into account -
(a) the conditions and restrictions, if
any, included in the plan; and
(b) the management controls, if any,
included in the plan.
(5) Nothing in subsection (4) is to be taken
to limit the conditions or restrictions that
may be imposed on an environmental
licence.
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(6) If a condition or restriction imposed on
an environmental licence in relation to an
activity is inconsistent with -
(a) the conditions and restrictions, if
any, included in a marine farming
development plan that applies in
relation to the activity under the
Marine Farming Planning Act
1995; or
(b) a management control, if any,
included in a marine farming
development plan that applies in
relation to the activity under the
Marine Farming Planning Act
1995 -
the condition or restriction, or
management control, included in the
marine farming development plan is of
no effect to the extent of the
inconsistency.
(7) If a condition or restriction imposed on
an environmental licence in relation to an
activity is inconsistent with the
conditions and restrictions, if any,
imposed on -
(a) a marine farming licence or a fish
farm licence; or
(b) an exemption permit -
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that applies in relation to the activity, the
condition or restriction of the marine
farming licence, fish farm licence or
exemption permit is of no effect to the
extent of the inconsistency.
42ZA. Director may require information to be
provided
(1) This section applies in relation to a
person if -
(a) the person is taken under
section 42D to have applied for
an environmental licence; or
(b) the person has applied under
section 42I(1) for an
environmental licence; or
(c) the person has applied under
section 42N(1) for a variation of
an environmental licence or the
Director is proposing to vary
under section 42P(1) an
environmental licence held by the
person; or
(d) the person has applied under
section 42S(1) for the renewal of
an environmental licence; or
(e) the person has applied under
section 42W(1) for the transfer of
an environmental licence.
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(2) If this section applies in relation to a
person, the Director may require the
person to -
(a) provide any information that the
Director requires; or
(b) verify by statutory declaration
any information given in an
application made by the person or
pursuant to a requirement under
this section.
(3) If this section applies in relation to a
person in respect of an application
referred to in subsection (1), the Director
may refuse to make a decision under this
Division in relation to the application
before the information is provided or
verified.
(4) If this section applies in relation to a
person by virtue of subsection (1)(a), the
person must comply with a requirement
imposed on the person by a notice under
subsection (2).
Penalty: Fine not exceeding 100 penalty
units.
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42ZB. Issue of licence document in relation to
licence granted, varied, transferred or
renewed
(1) If an environmental licence is granted,
varied, transferred or renewed under this
Division by the Director or the Board,
the Director must issue a licence
document in relation to the licence, by
serving the licence document on -
(a) the person to whom the licence is
granted; or
(b) the holder of the environmental
licence that is being varied or
renewed; or
(c) the person to whom the
environmental licence is to be
transferred -
as the case may be.
(2) If an environmental licence, a variation
of an environmental licence, or a
condition or restriction of an
environmental licence, is specified in
section 42ZK to be of no effect subject to
the determination of an appeal, a licence
document in relation to the
environmental licence is not, if an appeal
against the decision is made, to be issued,
if at all, until the determination of the
appeal within the meaning of that
section.
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(3) Subsection (2) does not apply in relation
to the grant of an environmental licence
under section 42E.
(4) If the Board was required -
(a) under section 42K to determine
whether to grant an
environmental licence in relation
to an activity in relation to which
a permit or special permit is
required; or
(b) under section 42Q to determine
whether to vary an environmental
licence in relation to a proposed
expansion, intensification or
modification of an activity that is
carried out under an
environmental licence and that is
an expansion, intensification or
modification for which a permit
or special permit is required -
the Director must not issue a licence
document in relation to the activity
unless and until the Board is notified
under section 27AC(5) that a permit, or
special permit, has been granted in
relation to the activity or the proposed
expansion, intensification or
modification of an activity that is carried
out under an environmental licence, as
the case may be.
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(5) A licence document is to be in the form
approved by the Director, which may be
an electronic form.
(6) The form, of a licence document, in
relation to an environmental licence, that
is approved by the Director, must include
the following:
(a) the name of the person to whom
the licence document is issued,
with sufficient particularity to
accurately identify the person;
(b) a statement as to -
(i) whether the Board or the
Director granted, varied,
transferred or renewed the
licence; and
(ii) the provision of this Act
under which the licence
was granted, varied,
transferred or renewed;
(c) the conditions or restrictions, if
any, imposed on the licence as
granted, varied, transferred or
renewed, as the case may be;
(d) a description of the land, and any
premises, to which the licence
relates, that is sufficient to
accurately identify the land and
premises;
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(e) if, under the licence, finfish
farming is to be conducted in
State waters, a description, of the
area of State waters on which the
finfish farming is to be
conducted, that accurately
identifies the area of State waters;
(f) the period, if any, for which the
licence is, subject to this Act, to
remain in force or, if such a
period has not been determined in
relation to the licence, a statement
that the licence remains in force,
subject to this Act, for an
indefinite period.
(7) The Director is to provide a copy of a
licence document issued under this
section to each planning authority in
respect of the area of land, or the area of
State waters, to which the licence
document relates.
(8) The Director may issue, reissue or cancel
a licence document if necessary for the
purposes of a determination of the
Appeal Tribunal in relation to a decision
under this Part.
42ZC. When licences take and cease to have effect
(1) This section applies subject to
section 42ZK.
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(2) An environmental licence that is granted
or renewed takes effect on the day on
which the licence document in relation to
the licence is served under
section 42ZB(1) on the holder of the
environmental licence.
(3) The variation of an environmental
licence under section 42N, 42P or 42Q
takes effect on the day on which the
licence document in relation to the
licence, as so varied, is served under
section 42ZB(1) on the holder of the
environmental licence.
(4) On the day on which a copy of a licence
document in relation to an activity is
served under section 42ZB(1) on a
person to whom the environmental
licence to which the licence document
relates is transferred -
(a) the environmental licence
specified in the licence document
takes effect; and
(b) the previous environmental
licence, in relation to the activity,
that was in force immediately
before that day, ceases to have
effect.
(5) Subject to this Act, an environmental
licence remains in force from the day on
which it takes effect until -
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(a) if a period for which the licence
is to remain in effect is specified
in the licence document in
relation to the licence - the day
on which that period expires; or
(b) if the licence is surrendered - the
day on which the licence ceases
under section 42ZH to have
effect; or
(c) the day on which a subsequent
licence in relation to the activity
that is issued under
section 42ZB(1) takes effect; or
(d) the day on which notice of the
cancellation of the licence is
served on the holder of the
licence -
whichever occurs first.
42ZD. Deferral of certain decisions pending
outcome of proceedings
(1) In this section -
relevant person, in relation to a
decision, means -
(a) a person who has made an
application to which the decision
relates or an associate of such a
person; or
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(b) a person -
(i) whose application under
the Land Use Planning
and Approvals Act 1993
or this Act is referred to
the Board or who intends
to carry out, or is carrying
out, an activity which is
referred to the Board
under this Division; and
(ii) who is a person to whom
the decision relates; or
(c) an associate of a person referred
to in paragraph (b); or
(d) a person to whom, in an
application under section 42W, it
is proposed that an environmental
licence be transferred or an
associate of such a person.
(2) This section applies in relation to
section 42I, section 42J, section 42K,
section 42N, section 42Q, section 42T
and section 42W.
(3) If the Director or the Board is required
under a section to which this section
applies to make a decision in relation to a
relevant person, the Director or the
Board, respectively, may defer making
the decision pending the outcome of
proceedings, against the relevant person
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or another relevant person, in relation to
an offence committed against -
(a) this Act; or
(b) any other Act; or
(c) a law of another State, a
Territory, or the Commonwealth,
that relates to the protection of
the environment -
by the relevant person or the other
relevant person.
42ZE. Notices of certain decisions to be given
(1) In this section -
Director of Inland Fisheries means
the Director of Inland Fisheries
appointed under section 11 of the
Inland Fisheries Act 1995;
Secretary means the Secretary of the
Department responsible to the
Minister to whom the
administration of the Living
Marine Resources Management
Act 1995 is assigned.
(2) The Director is to notify the Director of
Inland Fisheries of -
(a) an application under this Division
for the grant, variation, renewal
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or transfer of an environmental
licence in relation to inland fish
farming or for approval of the
surrender of an environmental
licence in relation to inland fish
farming; and
(b) a decision of the Director or the
Board to grant or vary, or to
refuse to grant or vary, an
environmental licence in relation
to inland fish farming; and
(c) a decision of the Director to
renew, transfer, or approve the
surrender of, or to refuse to
renew, transfer, or approve the
surrender of, an environmental
licence in relation to inland fish
farming; and
(d) a decision of the Director to
suspend or cancel an
environmental licence in relation
to inland fish farming.
(3) The Director is to notify the Secretary
of -
(a) an application under this Division
for the grant, variation, renewal
or transfer of an environmental
licence in relation to marine
farming or for approval of the
surrender of an environmental
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licence in relation to marine
farming; and
(b) a decision of the Director or the
Board to grant or vary, or to
refuse to grant or vary, an
environmental licence in relation
to marine farming; and
(c) a decision of the Director to
renew, transfer, or approve the
surrender of, or to refuse to
renew, transfer, or approve the
surrender of, an environmental
licence in relation to marine
farming; and
(d) a decision of the Director to
suspend or cancel an
environmental licence in relation
to marine farming.
Subdivision 8 - Surrender, suspension and cancellation of
licences
42ZF. Suspension, or cancellation, of licences
(1) The Director may, by notice to the holder
of an environmental licence, suspend or
cancel the licence.
(2) The Director may only suspend or cancel
an environmental licence under
subsection (1) if the Director is satisfied
that -
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(a) a condition or restriction of the
licence has been contravened; or
(b) the holder of the environmental
licence has, within the 5-year
period before the suspension or
cancellation, been convicted of an
offence, which the Director
considers to be an offence
relevant to the holding of the
environmental licence, against -
(i) this Act; or
(ii) any other Act; or
(iii) a law of another State, a
Territory, or the
Commonwealth, that
relates to the protection of
the environment; or
(c) a lease under Part 4 of the Marine
Farming Planning Act 1995, for
an area on which activities under
the environmental licence are
carried out, has been cancelled or
has expired; or
(d) the holder of the environmental
licence has not paid any fees that
are due and payable under this
Act, in relation to an
environmental licence, by the
holder of the licence; or
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(e) an activity under the licence has
caused, is causing or is likely to
cause serious environmental harm
or material environmental harm
and the risk of such harm cannot
be, within a reasonable period,
removed, or adequately reduced,
by varying the licence.
(3) If an environmental licence is suspended,
the licence is to be taken not to be in
force while the suspension remains in
force.
(4) A notice under subsection (1) -
(a) may suspend an environmental
licence -
(i) for a period specified in
the notice; or
(ii) until a requirement
specified in the notice is
satisfied; or
(iii) until the Director issues a
notice under
subsection (7) in relation
to the licence -
whichever occurs first; and
(b) must specify the reasons for
suspending or cancelling the
licence; and
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(c) must specify the rights of the
person under Subdivision 9 to
appeal to the Appeal Tribunal in
relation to a decision made by the
Director under this section.
(5) Without limiting the generality of
subsection (4)(a)(ii), a requirement
specified in a notice under that
subsection may include a requirement
that the holder of a licence to which the
notice relates -
(a) ensure that a scientific study be
carried out; or
(b) take an action to prevent
environmental harm; or
(c) take an action to ensure the
remediation of environmental
harm.
(6) A person does not commit an offence
under section 42C in relation to an
activity conducted in accordance with a
requirement specified in a notice under
subsection (1).
(7) The Director may, by notice in writing to
the holder of an environmental licence,
notify the holder of the environmental
licence that the suspension of the licence
has ceased.
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(8) The Director may, by notice in writing to
a person who was the holder of an
environmental licence that has been
cancelled under this section, disqualify
the person from holding an
environmental licence at any time or for
a period specified in the notice.
(9) The Director may only issue a notice
under subsection (8) to a person who was
the holder of an environmental licence
that has been cancelled under this section
if -
(a) the notice is issued after the end
of the period in which an
application for an appeal against
the decision to cancel the licence
may be made under
Subdivision 9; and
(b) where an application for an
appeal is made under
Subdivision 9 against the decision
to cancel the licence, the appeal is
not upheld.
42ZG. Notice to be given before suspension or
cancellation
(1) The Director may not suspend or cancel
an environmental licence under
section 42ZF(1) unless the Director has -
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(a) at least 14 days before the
suspension or cancellation, issued
a notice to the holder of the
environmental licence -
(i) advising that the Director
intends to suspend or
cancel the licence; and
(ii) specifying the grounds on
which the Director
intends to suspend or
cancel the licence; and
(iii) inviting the holder of the
environmental licence to
provide to the Director,
within 14 days after
receiving the notice,
written reasons as to why
the licence ought not be
suspended or cancelled;
and
(b) considered any written reasons
provided to the Director under
subsection (3).
(2) If the Director has complied with
subsection (1) in relation to a notice to
the holder of an environmental licence
advising that the Director intends to
cancel the licence, the Director may
suspend the licence instead of cancelling
it.
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(3) The holder of an environmental licence
to whom a notice has been issued under
subsection (1) may provide to the
Director, within 14 days after receiving
the notice, written reasons as to why the
licence ought not be suspended or
cancelled as proposed in the notice.
42ZH. Surrender of licence
(1) The holder of an environmental licence
may apply to the Director, in a form
approved by the Director, for an approval
of the surrender of the licence.
(2) The Director may, on receiving an
application under subsection (1), by
notice to the holder of an environmental
licence -
(a) grant an approval of the surrender
of the licence without conditions
or restrictions; or
(b) grant an approval of the surrender
of the licence on the conditions or
restrictions specified in the
notice; or
(c) refuse to grant an approval of the
surrender of the licence.
(3) A notice under subsection (2) must -
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(a) if the Director grants an approval
of the surrender of an
environmental licence on
conditions or restrictions, specify
the reasons for imposing the
conditions or restrictions; and
(b) if the Director refuses to grant an
approval of the surrender of an
environmental licence, specify
the reasons for the refusal; and
(c) specify the rights of the person
under Subdivision 9 to appeal to
the Appeal Tribunal in relation to
a decision made by the Director
under this section.
(4) If the Director grants an approval of the
surrender of an environmental licence -
(a) under subsection (2)(a), the
licence is surrendered and ceases
to have effect on the day on
which the notice of grant of the
approval is given under that
subsection or on a later date
specified in the approval; or
(b) under subsection (2)(b), the
licence is surrendered and ceases
to have effect on the day on
which the conditions or
restrictions specified in the
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approval of the surrender are
satisfied.
(5) A person whose environmental licence is
surrendered under this section is not
entitled to any compensation or refund in
respect of any matter arising from the
surrender.
Subdivision 9 - Appeals in relation to licences
42ZI. Right of appeal
(1) A person who intends to carry out an EL
activity may appeal to the Appeal
Tribunal against a decision of the
Director or the Board under section 42J
or section 42K to refuse to grant an
environmental licence in relation to the
activity, except in relation to a decision
in accordance with section 42L(1).
(2) A person to whom an environmental
licence has been granted may appeal to
the Appeal Tribunal against a decision of
the Director or the Board -
(a) under section 42F to impose
conditions or restrictions on the
environmental licence, but only if
the condition or restriction to
which the appeal relates is not a
condition or restriction
substantially the same as a
condition or restriction imposed
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on an existing authorisation in
relation to the activity to which
the environmental licence relates;
or
(b) under section 42J, or section 42K,
to impose conditions or
restrictions on the environmental
licence.
(3) A person who holds or has held an
environmental licence may appeal to the
Appeal Tribunal against a decision of the
Director or the Board -
(a) under section 42N to vary the
environmental licence, if the
variation is not a variation of the
licence for which the holder of
the environmental licence applied
under section 42N(1); or
(b) under section 42N to refuse to
vary the environmental licence;
or
(c) under section 42P to vary the
environmental licence, but only if
the person provided the Director
under section 42P(3) with written
reasons why the licence ought not
be so varied; or
(d) under section 42Q to vary the
environmental licence; or
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(e) under section 42Q to refuse to
vary the environmental licence;
or
(f) under section 42T to refuse to
renew the environmental licence;
or
(g) under section 42U to renew the
environmental licence; or
(h) under section 42T or 42U to
impose a condition or restriction
on an environmental licence as
renewed under that section, if the
condition or restriction was not a
condition or restriction of the
licence before the licence was
renewed; or
(i) under section 42W to refuse to
transfer the environmental
licence; or
(j) under section 42W(4) to impose,
on the environmental licence as
transferred under section 42W, a
condition or restriction that was
not a condition or restriction of
the environmental licence before
it was transferred; or
(k) under section 42ZF to suspend or
cancel the environmental licence;
or
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(l) under section 42ZH to refuse to
grant an approval of the surrender
of the environmental licence; or
(m) under section 42ZH to impose a
condition or restriction on an
approval, granted under that
section, of the surrender of the
environmental licence.
(4) Subsections (2) and (3) do not apply in
relation to a decision of the Director or
the Board to impose on an environmental
licence a condition referred to in section
42Z(2)(m) or to vary such a condition.
(5) An appeal under this section must be
made by a person within 14 days after
the day on which notice of the decision
to which the appeal relates was given to
the person under section 42E(8), section
42M, section 42N(7), section 42P(4),
section 42R, section 42T(9),
section 42U(6), section 42W(6),
section 42ZF(1) or section 42ZH(2), as
the case may be.
42ZJ. Appeals by persons who have made
representations
(1) In this section -
relevant representation means -
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(a) a representation under the Land
Use Planning and Approvals Act
1993, or under section 27G(2), in
relation to an application for a
permit under that Act in relation
to an EL activity; and
(b) a representation under the Land
Use Planning and Approvals Act
1993, or under section 27G(2), in
relation to a project of regional
significance that relates to an EL
activity; and
(c) a representation under
section 27G(2), in relation to an
assessment under section 27AA.
(2) A person who has, in respect of an EL
activity, made a relevant representation
may, within 14 days after being notified
under section 42M(3) or section 42R(2)
of a decision by the Board -
(a) to grant or refuse to grant an
environmental licence; or
(b) to vary or refuse to vary an
environmental licence; or
(c) to impose a condition or
restriction on an environmental
licence -
appeal to the Appeal Tribunal, within the
meaning of the Resource Management
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and Planning Appeal Tribunal Act 1993,
in relation to the decision of the Board.
(3) Subsection (2) does not apply in relation
to a decision of the Board to impose on
an environmental licence a condition
referred to in section 42Z(2)(m) or to
vary such a condition.
42ZK. Effect of notice of appeal
(1) If an application is made under
section 42ZJ(2)(a) in relation to a
decision to grant an environmental
licence, the licence is of no effect,
subject to the determination of the
appeal.
(2) If an application is made under
section 42ZI(2)(a) in relation to a
decision to impose a condition or
restriction on an environmental licence,
the licence remains in effect, but the
condition or restriction against which the
appeal is made is of no effect, subject to
the determination of the appeal.
(3) If an application is made under
section 42ZI(2)(b) or section 42ZJ(2)(c)
in relation to a decision to impose a
condition or restriction on an
environmental licence, the licence is of
no effect, subject to the determination of
the appeal.
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(4) If an application is made under
section 42ZI(3)(a), (c) or (d) or
section 42ZJ(2)(b) in relation to a
decision to vary an environmental
licence, the variation of the licence is of
no effect, subject to the determination of
the appeal.
(5) If an application is made under
section 42ZI(3)(f) in relation to a
decision to refuse to renew an
environmental licence, the licence
remains of no effect from the date on
which it was due to expire, subject to the
determination of the appeal.
(6) If an application is made under
section 42ZI(3)(g) in relation to a
decision to renew an environmental
licence, the licence remains in effect,
subject to the determination of the
appeal.
(7) If an application is made under
section 42ZI(3)(h) in relation to a
decision to impose a condition or
restriction on an environmental licence
that is renewed, the condition or
restriction of the licence remains in
effect, subject to the determination of the
appeal.
(8) If an application is made under
section 42ZI(3)(j) in relation to a
decision under section 42W(4) to impose
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a condition or restriction on an
environmental licence, the condition or
restriction remains in effect, subject to
the determination of the appeal.
(9) If an application is made under
section 42ZI(3)(k) in relation to a
decision to suspend or cancel an
environmental licence, the suspension or
cancellation remains in force, subject to
the determination of the appeal.
(10) If an application is made under
section 42ZI(3)(l) in relation to a
decision to refuse to grant an approval of
the surrender of an environmental
licence, the licence remains in effect,
subject to the determination of the
appeal.
(11) If an application is made under
section 42ZI(3)(m) in relation to a
decision to impose, on a grant of an
approval under section 42ZH to
surrender the licence, a condition or a
restriction, the condition or restriction
remains in effect, subject to the
determination of the appeal.
(12) A reference in this section to the
determination of an appeal includes a
reference to the withdrawal,
abandonment or dismissal of an appeal.
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42ZL. Power of Appeal Tribunal in relation to
certain appeals
If an application is made under
section 42ZI in relation to an EL activity,
the Appeal Tribunal may direct the
Board to -
(a) conduct an assessment under
Division 1A and, if it thinks fit, to
conduct the assessment in
accordance with the directions of
the Appeal Tribunal; and
(b) to provide to the Appeal Tribunal
the results of the assessment.
19. Section 44 amended (Environment protection
notices)
Section 44 of the Principal Act is amended by
inserting after subsection (7) the following
subsection:
(7A) An environment protection notice has
effect even if it is inconsistent with an
environmental licence and the
environmental licence has no effect to
the extent of the inconsistency.
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20. Section 48 amended (Civil enforcement
proceedings)
Section 48(5)(d) of the Principal Act is amended
by inserting "environmental licence," after
"programme,".
21. Section 55A amended (General environmental duty
defence)
Section 55A(1) of the Principal Act is amended
as follows:
(a) by inserting in paragraph (a) ", a
condition or restriction specified in an
environmental licence (other than a
condition referred to in
section 42Z(2)(a), (b), (c) or (d))," after
"policy";
(b) by inserting in paragraph (b)(i)
"environmental licence," after "policy,".
22. Section 98AA amended (Liability for payment of
fees)
Section 98AA(1) of the Principal Act is
amended by inserting after paragraph (b) the
following paragraphs:
(ba) in relation to an assessment undertaken
under section 27AA or 27AB, is payable
by the person who made the referral, or is
the proponent of the project, to which the
assessment relates; and
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(bb) in relation to an application under
section 42I(1) for an environmental
licence, is payable by the applicant for
the licence; and
(bc) in relation to an application for -
(i) the variation under
section 42N(3) of an
environmental licence; or
(ii) the renewal under section 42T(1)
of an environmental licence; or
(iii) the transfer under section 42W(2)
of an environmental licence; or
(iv) the grant under section 42ZH(2)
of an approval to surrender an
environmental licence -
is payable by the holder of the
environmental licence; and
(bd) in respect of an environmental licence,
including an annual fee, or any other
action taken by the Director or the Board
in relation to an environmental licence, is
payable by the holder of the
environmental licence; and
23. Section 102 amended (Regulations)
Section 102 of the Principal Act is amended as
follows:
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(a) by inserting the following paragraphs
after paragraph (a) in subsection (3):
(ab) an application under
section 42I(1) for an
environmental licence; and
(ac) an application under
section 42N(1) for a variation of
an environmental licence; and
(ad) an application under
section 42S(1) for the renewal of
an environmental licence; and
(ae) an application under
section 42W(1) for the Director
to transfer an environmental
licence; and
(af) an application under
section 42ZH(1) for an approval
to surrender an environmental
licence; and
(ag) the determination by the Director
as to whether to impose a
condition or restriction on an
environmental licence and the
determination of such a condition
or restriction; and
(b) by inserting the following paragraph after
paragraph (b) in subsection (3A):
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(ba) an environmental licence,
including an annual fee, or any
other action taken by the Director
or the Board in relation to an
environmental licence; and
24. Schedule 2 amended (Level 2 Activities)
Clause 4 of Schedule 2 to the Principal Act is
amended by inserting after paragraph (g) the
following paragraph:
(h) Finfish farming.
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s. 25 Part 3 - Inland Fisheries Act 1995 Amended
PART 3 - INLAND FISHERIES ACT 1995 AMENDED
25. Principal Act
In this Part, the Inland Fisheries Act 1995* is
referred to as the Principal Act.
26. Section 51A inserted
After section 51 of the Principal Act, the
following section is inserted in Division 3:
51A. Notification of Director, EPA, of certain
matters
(1) In this section -
Director, EPA means the Director,
Environment Protection
Authority, appointed under
section 18 of the Environmental
Management and Pollution
Control Act 1994;
finfish farming has the same meaning
as in the Environmental
Management and Pollution
Control Act 1994.
(2) The Director is to notify the Director,
EPA of -
(a) an application for the grant,
renewal, or transfer, of a fish
*No. 110 of 1995
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farm licence in relation to finfish
farming; and
(b) a decision of the Director to
grant, or to refuse to grant, a fish
farm licence in relation to finfish
farming; and
(c) a decision of the Director to
renew, or to refuse to renew, a
fish farm licence in relation to
finfish farming; and
(d) a decision of the Director to
transfer, or to refuse to transfer, a
fish farm licence in relation to
finfish farming; and
(e) a decision of the Director to vary
a fish farm licence in relation to
finfish farming; and
(f) a decision of the Director to
cancel a fish farm licence in
relation to finfish farming; and
(g) the surrender of a fish farm
licence in relation to finfish
farming.
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s. 27 Part 4 - Living Marine Resources Management Act 1995 Amended
PART 4 - LIVING MARINE RESOURCES
MANAGEMENT ACT 1995 AMENDED
27. Principal Act
In this Part, the Living Marine Resources
Management Act 1995* is referred to as the
Principal Act.
28. Section 3 amended (Interpretation)
Section 3 of the Principal Act is amended by
inserting after the definition of export the
following definition:
finfish farming has the same meaning as it
has in the Environmental Management
and Pollution Control Act 1994;
29. Section 11 amended (Exemption from Act)
Section 11 of the Principal Act is amended by
inserting after subsection (1) the following
subsection:
(1A) The Minister must not, under
subsection (1), exempt a person or a class
of persons from a requirement to hold a
licence in relation to an activity, referred
to in section 64(1)(a) or (c), that relates
to finfish farming.
*No. 25 of 1995
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30. Section 92A inserted
After section 92 of the Principal Act, the
following section is inserted in Division 5:
92A. Notification of Director, EPA of certain
matters
(1) In this section -
Director, EPA means the Director,
Environment Protection
Authority, appointed under
section 18 of the Environmental
Management and Pollution
Control Act 1994.
(2) The Secretary is to notify the Director,
EPA of -
(a) an application for the grant,
renewal, or transfer, of a licence
in relation to finfish farming; and
(b) a decision of the Minister to
grant, or to refuse to grant, a
licence in relation to finfish
farming; and
(c) a decision of the Minister to
renew, or to refuse to renew, a
licence in relation to finfish
farming; and
(d) a decision of the Minister to
transfer, or to refuse to transfer, a
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licence in relation to finfish
farming; and
(e) a decision of the Minister to vary,
or to refuse to vary, a licence in
relation to finfish farming; and
(f) a decision of the Minister to
cancel or suspend a licence in
relation to finfish farming; and
(g) the surrender of a licence in
relation to finfish farming.
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Part 5 - Marine Farming Planning Act 1995 Amended s. 31
PART 5 - MARINE FARMING PLANNING ACT 1995
AMENDED
31. Principal Act
In this Part, the Marine Farming Planning Act
1995* is referred to as the Principal Act.
32. Section 3 amended (Interpretation)
Section 3 of the Principal Act is amended as
follows:
(a) by inserting the following definition after
the definition of demerit point:
Director, EPA means the Director,
Environment Protection
Authority, appointed under
section 18 of the Environmental
Management and Pollution
Control Act 1994;
(b) by inserting the following definition after
the definition of environmental impact
statement:
finfish farming has the same meaning
as in the Environmental
Management and Pollution
Control Act 1994;
*No. 31 of 1995
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33. Section 8 amended (Marine Farming Planning
Review Panel)
Section 8 of the Principal Act is amended as
follows:
(a) by omitting from subsection (2) "8
persons" and substituting "9 persons";
(b) by omitting paragraph (c) from
subsection (2) and substituting the
following paragraphs:
(c) one is a person, other than the
Director, EPA, with ability and
experience in environmental
management; and
(ca) one is a person, other than the
Director, EPA, with ability and
expertise in fish health and
biosecurity; and
(c) by omitting from subsection (3)
"subsection (2)(a), (d), (e) or (f)" and
substituting "subsection (2) (a), (c), (ca),
(d), (e) or (f)".
34. Section 17A inserted
After section 17 of the Principal Act, the
following section is inserted in Division 1:
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17A. Role of Director, EPA in relation to marine
farming development plans in relation to
finfish farming
(1) The Director, EPA, by notice in writing
to the Panel, may require -
(a) any matter, specified in the
notice, that relates to
environmental management of
finfish farming, to be contained
in -
(i) a draft plan, or draft
amendment, that relates to
finfish farming; or
(ii) any draft plan, or any
draft amendment, that
relates to finfish farming;
and
(b) any matter, specified in the
notice, that relates to
environmental management of
finfish farming, to be addressed
in -
(i) an environmental impact
statement; or
(ii) any environmental impact
statement -
that is, under section 23, to
accompany a draft plan, or a draft
amendment, in relation to finfish
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farming, or any draft plan, or any
draft amendment, in relation to
finfish farming; and
(c) any environmental management
controls, specified in the notice,
to be included in draft
management controls, to which
section 24 relates, that relate to
finfish farming; and
(d) the Panel to consider, under
section 29 or section 41, a matter,
specified in the notice, that relates
to environmental management of
finfish farming; and
(e) a matter, specified in the notice,
that relates to environmental
management of finfish farming,
to be included in -
(i) a draft plan, in relation to
finfish farming, to which
a recommendation of the
Panel under section 31(1)
relates; or
(ii) a draft amendment, in
relation to finfish farming,
to which a notification
under section 41A(1)
relates.
(2) The Panel must give to a person
preparing a draft plan, or an amendment
of a draft plan, in relation to finfish
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farming, a copy of any notice, given to
the Panel under subsection (1), that, in
the opinion of the Panel, relates to the
draft plan, or the amendment of a draft
plan, being prepared.
(3) The Secretary -
(a) is to notify the Director, EPA of
an application made under
section 16 for approval to prepare
a draft plan in relation to finfish
farming; and
(b) is to provide to the Director, EPA
a copy of the application under
section 16 to which the approval
relates and any information that
accompanied the application; and
(c) is to notify the Director, EPA if
an approval under section 17
relates to finfish farming.
(4) The Panel must provide to the Director,
EPA a copy of a report, in relation to
finfish farming, forwarded to the Panel
under section 28.
(5) The Panel -
(a) is to notify the Director, EPA of
an application under section 33(1)
or (2) in relation to finfish
farming; and
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(b) is to provide to the Director, EPA
a copy of such an application.
(6) As soon as practicable after the Minister
gives an approval, sought under section
33(5), in relation to finfish farming, the
Panel -
(a) is to notify the Director, EPA of
the approval; and
(b) is to provide to him or her a copy
of the request to which the
approval relates.
(7) As soon as practicable after the Panel
directs a planning authority under
section 34 to prepare a draft amendment
(other than in response to a request from
the Director, EPA) of a marine farming
development plan in relation to finfish
farming, the Panel -
(a) is to notify the Director, EPA of
the direction; and
(b) is to provide to him or her a copy
of the request to which the
direction relates.
(8) The Panel is to notify the Director, EPA
of the withdrawal of a draft amendment,
in relation to finfish farming, in
accordance with section 36.
(9) The Panel, within 7 days of receiving a
report under section 40 in relation to
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finfish farming, is to forward the report
to the Director, EPA.
(10) A planning authority -
(a) before preparing a draft
emergency plan under section 45
in relation to finfish farming, is to
notify the Director, EPA of the
authority's intention to prepare
the plan; and
(b) as soon as practicable after an
emergency plan in relation to
finfish farming is approved by the
Minister under section 45, is to
notify the Director, EPA of the
approval of the emergency plan.
35. Section 19 amended (Area comprised in draft plan)
Section 19 of the Principal Act is amended by
inserting after subsection (1) the following
subsection:
(1A) A draft plan, in so far as it relates to
finfish farming, may not relate to an area
of State waters, or an area that adjoins
State waters, if all or part of the area to
which the draft plan relates is a finfish
marine farming exclusion zone under
section 19A.
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36. Section 19A inserted
After section 19 of the Principal Act, the
following section is inserted in Division 1:
19A. Finfish marine farming exclusion zones
(1) Each area that is indicated on a map in
Schedule 6 to be a finfish marine farming
exclusion zone is a finfish marine
farming exclusion zone.
(2) The Governor, by proclamation, may
amend Schedule 6 by -
(a) adding to Schedule 6 a map
indicating an area that is to be a
finfish marine farming exclusion
zone; or
(b) revoking a map that is in
Schedule 6.
(3) The Governor may only make a
proclamation under subsection (2) if a
draft of the proclamation has been
approved by both Houses of Parliament.
(4) For the purposes of subsection (3), a
House of Parliament is to be taken to
have approved a draft of a proclamation
if a copy of it has been laid on the table
of the House and -
(a) it is approved by the House; or
(b) at the expiration of 5 sitting-days
after it was laid on the table of the
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House, no notice has been given
of a motion to disallow it or, if
such notice has been given, the
notice has been withdrawn or the
motion has been negatived; or
(c) if any notice of a motion to
disallow it is given during that
period of 5 sitting-days, the
notice is, after the expiration of
that period, withdrawn or the
motion is negatived.
(5) An amendment of Schedule 6 by a
proclamation under subsection (2) takes
effect on the day on which notice of the
making of the proclamation is published
in the Gazette.
37. Section 21 amended (Draft marine farming
development plan)
Section 21(1) of the Principal Act is amended by
inserting after paragraph (c) the following
paragraph:
(ca) if it relates to finfish farming, contain
any matter relating to environmental
management that is required by the
Director, EPA, in a notice under
section 17A(1), to be contained in the
marine farming development plan or any
marine farming development plan; and
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38. Section 23 amended (Environmental impact
statement)
Section 23(2) of the Principal Act is amended by
inserting after paragraph (a) the following
paragraph:
(ab) if it relates to finfish farming, address
any matter relating to environmental
management that is required by the
Director, EPA, in a notice under
section 17A(1), to be addressed in the
environmental impact statement or in any
environmental impact statement; and
39. Section 24 amended (Draft management controls)
Section 24 of the Principal Act is amended by
inserting after subsection (2) the following
subsection:
(2A) Draft management controls must, if they
relate to finfish farming, contain any
environmental management controls that
the Director, EPA, in a notice under
section 17A(1), requires to be included in
the draft management controls.
40. Section 25 amended (Approval of draft plan)
Section 25(3) of the Principal Act is amended by
inserting after paragraph (a) the following
paragraph:
(ab) contains any matter relating to
environmental management of finfish
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farming that the Director, EPA, in a
notice under section 17A(1), requires the
Panel to include in the draft plan or any
draft plan; and
41. Section 29 amended (Consideration of draft plan,
management controls and representations)
Section 29 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "any matter
relating to environmental management of
finfish farming that the Director, EPA, in
a notice under section 17A(1), requires
the Panel to consider," after "plan,";
(b) by omitting from subsection (2) "plan,"
and substituting "plan, matters, if any,".
42. Section 31 amended (Final approval of draft plan)
Section 31(1) of the Principal Act is amended by
inserting after paragraph (a) the following
paragraph:
(b) the draft plan contains any matter
relating to environmental management of
finfish farming that the Director, EPA, in
a notice under section 17A(1), requires
the Panel to include in the draft plan or
any draft plan.
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43. Section 32 amended (Requirements for preparation
of amendment)
Section 32(2) of the Principal Act is amended by
inserting after paragraph (a) the following
paragraphs:
(ab) must not extend the area to which the
plan applies in relation to finfish farming
so as to include an area of State waters,
or an area that adjoins State waters, that
is within a finfish marine farming
exclusion zone under section 19A; and
(ac) must contain any matter relating to
environmental management of finfish
farming that the Director, EPA, in a
notice under section 17A(1), requires the
Panel to include in the draft amendment
or any draft amendment; and
44. Section 34 amended (Amendment of marine
farming development plan)
Section 34(1) of the Principal Act is amended by
inserting after paragraph (a) the following
paragraph:
(ab) in response to a request from the
Director, EPA in relation to finfish
farming; or
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45. Section 35 amended (Certification of draft
amendment)
Section 35(3) of the Principal Act is amended by
inserting after paragraph (a) the following
paragraph:
(ab) contains any matter relating to
environmental management of finfish
farming that the Director, EPA, in a
notice under section 17A(1), requires the
Panel to include in the draft amendment
or any draft amendment; and
46. Section 41 amended (Consideration by Panel of
draft amendment, &c.)
Section 41(1) of the Principal Act is amended by
inserting "must consider any matter, relating to
environmental management of finfish farming,
that it is required by the Director, EPA, in a
notice under section 17A(1), to consider and"
after "Panel".
47. Section 42 amended (Final approval or refusal of
draft amendment)
Section 42(2) of the Principal Act is amended by
inserting "Director, EPA," after "Board,".
48. Section 43 amended (Emergency order)
Section 43 of the Principal Act is amended by
inserting after subsection (6) the following
subsection:
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(7) The planning authority must, as soon as
practicable after issuing an emergency
order that relates to finfish farming, and
in any case within 24 hours, notify the
Director, EPA of the issue of the order
and provide to him or her a copy of the
order.
49. Section 44 amended (Operation of emergency
order)
Section 44 of the Principal Act is amended by
inserting after subsection (3) the following
subsection:
(4) The planning authority must, as soon as
practicable after extending an emergency
order that relates to finfish farming,
notify the Director, EPA of the extension
of the order and any conditions imposed
on the extension.
50. Section 45 amended (Emergency plans)
Section 45 of the Principal Act is amended as
follows:
(a) by inserting the following subsection
after subsection (1):
(1AA) An emergency plan must include
any matters relating to
environmental management of
finfish farming that the Director,
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EPA requires to be included in
such a plan.
(b) by inserting in subsection (2) "and to the
Director, EPA" after "Panel".
51. Section 46 amended (Operation of emergency plan)
Section 46 of the Principal Act is amended by
inserting after subsection (3) the following
subsection:
(4) The planning authority in relation to an
emergency plan that relates to finfish
farming must notify the Director, EPA as
soon as practicable after the emergency
plan ceases to be in force.
52. Section 47 amended (Exemption from emergency
plan)
Section 47 of the Principal Act is amended as
follows:
(a) by inserting the following subsection
after subsection (2):
(2A) The Minister must consult with
the Director, EPA before
determining whether or not to
grant an exemption from an
emergency plan that relates to
finfish farming.
(b) by inserting the following subsection
after subsection (4):
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(5) The Minister must notify the
Director, EPA of the grant of an
exemption from an emergency
plan that relates to finfish farming
and provide the Director, EPA
with a copy of the exemption.
53. Section 59 amended (Granting of lease)
Section 59(4) of the Principal Act is amended by
omitting "of a" and substituting "for a".
54. Section 60 amended (Special lease)
Section 60(1) of the Principal Act is amended by
omitting "a special lease" and substituting "an
application for a special lease".
55. Schedule 6 inserted
After Schedule 5 to the Principal Act, the
following Schedule is inserted:
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SCHEDULE 6 - FINFISH MARINE FARMING
EXCLUSION ZONE
Section 19A
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s. 56 Part 6 - Resource Management and Planning Appeal Tribunal Act 1993
Amended
PART 6 - RESOURCE MANAGEMENT AND
PLANNING APPEAL TRIBUNAL ACT 1993 AMENDED
56. Principal Act
In this Part, the Resource Management and
Planning Appeal Tribunal Act 1993* is referred
to as the Principal Act.
57. Section 14 amended (Parties to appeal before
Appeal Tribunal)
Section 14(1A)(b) of the Principal Act is
amended by inserting "or 27AC(2)(a)" after
"section 25(5)(b)".
*No. 66 of 1993
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Part 7 - Concluding Provision s. 58
PART 7 - CONCLUDING PROVISION
58. Repeal of Act
This Act is repealed on the three hundred and
sixty fifth day from the day on which it
commences.
Government Printer, Tasmania 169