ENVIRONMENT PROTECTION ACT 1993 - SECT 104
ENVIRONMENT PROTECTION ACT 1993 - SECT 104
(1) Applications may
be made to the Environment, Resources and Development Court for one or more of
the following orders:
(a) if a
person has engaged, is engaging or is proposing to engage in conduct in
contravention of this Act—an order restraining the person from engaging
in the conduct and, if the Court considers it appropriate to do so, requiring
the person to take any specified action;
(b) if a
person has refused or failed, is refusing or failing or is proposing to refuse
or fail to take any action required by this Act—an order requiring the
person to take that action;
(c) if a
person has caused environmental harm by a contravention of this Act or a
repealed environment law—an order requiring the person to take specified
action to make good any resulting environmental damage and, if appropriate, to
take specified action to prevent or mitigate further environmental harm;
(d) if
the Authority or any other public authority has incurred costs or expenses in
taking action to prevent or mitigate environmental harm caused by a
contravention of this Act or a repealed environment law, or to make good
resulting environmental damage—an order against the person who committed
the contravention for payment of the reasonable costs and expenses incurred in
taking that action;
(e) if a
person has suffered injury or loss or damage to property as a result of a
contravention of this Act, or incurred costs and expenses in taking action to
prevent or mitigate such injury, loss or damage—an order against the
person who committed the contravention for payment of compensation for the
injury, loss or damage, or for payment of the reasonable costs and expenses
incurred in taking that action;
(ea) if
a person who has been issued with a site contamination assessment order or
site remediation order has incurred costs and expenses in carrying out the
requirements of the order or reimbursing the Authority for action taken in
pursuance of the order—an order for payment of the whole or a portion of
the costs and expenses, as the Court considers appropriate, against 1 or more
other persons who caused the site contamination;
(f) if
the Court considers it appropriate to do so, an order against a person who has
contravened this Act for payment (for the credit of the Consolidated Account)
of an amount in the nature of exemplary damages determined by the Court;
(g) an
order for enforcement of the provisions of an environment
performance agreement.
(2) The power of the
Court to make an order restraining a person from engaging in conduct of a
particular kind may be exercised—
(a) if
the Court is satisfied that the person has engaged in conduct of that
kind—whether or not it appears to the Court that the person intends to
engage again, or to continue to engage, in conduct of that kind; or
(b) if
it appears to the Court that, in the event that an order is not made, it is
likely that the person will engage in conduct of that kind—whether or
not the person has previously engaged in conduct of that kind and whether or
not there is an imminent danger of substantial harm or damage if the
first-mentioned person engages in conduct of that kind.
(3) The power of the
Court to make an order requiring a person to take specified action may be
exercised—
(a) if
the Court is satisfied that the person has refused or failed to take that
action—whether or not it appears to the Court that the person intends to
refuse or fail again, or to continue to refuse or fail, to take that action;
or
(b) if
it appears to the Court that, in the event that an order is not made, it is
likely that the person will refuse or fail to take that action—whether
or not the person has previously refused or failed to take that action and
whether or not there is an imminent danger of substantial harm or damage if
the first-mentioned person refuses or fails to take that action.
(4) In assessing an
amount to be ordered in the nature of exemplary damages, the Court must have
regard to—
(a) any
environmental harm or detriment to the public interest resulting from the
contravention; and
(b) any
financial saving or other benefit that the respondent stood to gain by
committing the contravention; and
(c) any
other matter it considers relevant.
(5) The power to order
payment of an amount in the nature of exemplary damages may only be exercised
by a Judge of the Court.
(6) The power of the
Court to make an order for enforcement of an environment performance agreement
includes any power to make orders or provide relief that the District Court
has in relation to a contract.
(7) An application
under this section may be made—
(a) by
the Authority or another administering agency; or
(b) by
any person whose interests are affected by the subject matter of the
application; or
(c) by
any other person with the permission of the Court.
(8) Before the Court
may grant permission for the purposes of subsection (7)(c), the Court
must be satisfied that—
(a) the
proceedings on the application would not be an abuse of the process of the
Court; and
(b)
there is a real or significant likelihood that the requirements for the making
of an order under subsection (1) on the application would be satisfied;
and
(c) it
is in the public interest that the proceedings should be brought.
(9) If an application
is made by a person other than the Authority—
(a) the
applicant must serve a copy of the application on the Authority within three
days after filing the application with the Court; and
(b) the
Court must, on application by the Authority, join the Authority as a party to
the proceedings.
(10) An application
under this section may be made in a representative capacity (but, if so, the
consent of all persons on whose behalf the application is made must be
obtained).
(11) An application
may be made without notice to any person and, if the Court is satisfied on the
application that the respondent has a case to answer, it may grant permission
to the applicant to serve a summons requiring the respondent to appear before
the Court to show cause why an order should not be made under this section.
(12) An application
under this section must, in the first instance, be referred to a conference
under section 16 of the Environment, Resources and Development Court
Act 1993 (and the provisions of that Act will then apply in relation to
the application).
(13) If, on an
application under this section or before the determination of the proceedings
commenced by the application, the Court is satisfied that, in order to
preserve the rights or interests of parties to the proceedings or for any
other reason, it is desirable to make an interim order under this section, the
Court may make such an order.
(14) An interim
order—
(a) may
be made on an application without notice to any person; and
(b) may
be made whether or not the proceedings have been referred to a conference; and
(c) will
be made subject to such conditions as the Court thinks fit; and
(d) will
not operate after the proceedings in which it is made are finally determined.
(15) Where the Court
makes an order requiring the respondent to take any specified action to make
good any environmental damage or to prevent or mitigate further
environmental harm, the provisions of Division 4 of Part 10 relating to—
(a)
registration of a clean-up order in relation to land; and
(b) the
taking of action by the Authority on non-compliance with a clean-up order; and
(c) the
recovery of costs and expenses by the Authority,
apply in relation to the Court's order in the same way as in relation to a
clean-up order issued by the Authority under that Division.
(16) The Court may, if
it thinks fit, adjourn proceedings under this section in order to permit the
respondent to make an application for an environmental authorisation that
should have been but was not made, or to remedy any other default.
(17) The Court may
order an applicant in proceedings under this section—
(a) to
provide security for the payment of costs that may be awarded against the
applicant if the application is subsequently dismissed;
(b) to
give an undertaking as to the payment of any amount that may be awarded
against the applicant under subsection (18).
(18) If, on an
application under this section alleging a contravention of this Act or a
repealed environment law, the Court is satisfied—
(a) that
the respondent has not contravened this Act or a repealed environment law; and
(b) that
the respondent has suffered loss or damage as a result of the actions of the
applicant; and
(c) that
in the circumstances it is appropriate to make an order under this provision,
the Court may, on the application of the respondent (and in addition to any
order as to costs), require the applicant to pay to the respondent an amount,
determined by the Court, to compensate the respondent for the loss or damage
suffered by the respondent.
(19) The Court may, if
it considers it appropriate to do so, either on its own initiative or on the
application of a party, vary or revoke an order previously made under this
section.
(20) Proceedings under
this section based on a contravention of this Act or a
repealed environment law may be commenced at any time within three years after
the date of the alleged contravention or, with the authorisation of the
Attorney-General, at any later time.
(21) An apparently
genuine document purporting to be under the hand of the Attorney-General and
to authorise the commencement of proceedings under this section will be
accepted in any legal proceedings, in the absence of proof to the contrary, as
proof of the authorisation.
(22) The Court may, in
any proceedings under this section, make such orders in relation to the costs
of the proceedings as it thinks just and reasonable.
(23) Without limiting
the generality of subsection (22), in determining whether to make any
order in relation to costs the Court may have regard to the following matters
(so far as they are relevant):
(a)
whether the applicant is pursuing a personal interest only in bringing the
proceedings or is furthering a wider group interest or the public interest;
(b)
whether or not the proceedings raise significant issues relating to the
administration of this Act.