NATIVE VEGETATION ACT 1991 - SECT 31A
NATIVE VEGETATION ACT 1991 - SECT 31A
31A—Application to ERD Court for enforcement
(1) The following
persons may apply to the ERD Court for an order to remedy or restrain a breach
of this Act:
(a)
the Council; or
(b) a
person who owns or who has any other legal or equitable interest in land that
has been, or will be, affected by the breach; or
(c) in
the case of a contravention of, or failure to comply with, a heritage
agreement—a party to the agreement.
(2) Proceedings under
this section may be brought in a representative capacity with the consent of
all persons on whose behalf they are to be brought.
(3) If proceedings
under this section are brought by a person other than the Council—
(a) the
applicant must serve a copy of the application on the Council within three
days after filing the application with the Court; and
(b) the
Court must, on application by the Council, join the Council as a party to the
proceedings.
(4) An application may
be made in the absence of the respondent and, if the Court is satisfied on the
application that the respondent has a case to answer, it may grant the
applicant permission 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.
(5) 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 .
(a)
after hearing—
(i)
the applicant and the respondent; and
(ii)
any other person who has, in the opinion of the Court, a
proper interest in the subject matter of the proceedings and desires to be
heard in the proceedings,
the Court is satisfied, on the balance of probabilities, that the respondent
to the application has breached this Act; or
(b) the
respondent fails to appear in response to the summons or, having appeared,
does not avail himself or herself of an opportunity to be heard,
the Court may, by order, exercise one or more of the following powers:
(c)
require the respondent to refrain, either temporarily or permanently, from the
act, or course of action, that constitutes the breach;
(d)
require the respondent to make good the breach in a manner, and within a
period, specified by the Court, or to take such other action as may appear
appropriate to the Court, taking into account the nature and extent of the
original vegetation;
(e)
require the respondent to pay to any person who has suffered loss or damage as
a result of the breach, or incurred costs or expenses as a result of the
breach, compensation for the loss or damage or an amount for, or towards,
those costs or expenses;
(f)
require the respondent to pay into the Fund an amount, determined by the Court
to be appropriate in the circumstances, on account of the financial benefit
that the respondent has gained, or can reasonably be expected to gain, by
committing the breach;
(g)
require the respondent to pay into the Fund an amount, determined by the
Court, in the nature of exemplary damages (and this amount may be in addition
to any amount ordered to be paid under paragraph (f));
(h)
require the respondent to take specified action to publicise—
(i)
the breach of this Act; and
(ii)
the environmental and other consequences flowing from the
breach; and
(iii)
the other requirements of the order made against the
respondent;
(i)
require the respondent to refrain from an act or course
of action, or to undertake an act or course of action, to ensure that the
respondent does not gain an ongoing benefit from the breach.
(7) In assessing
damages under subsection (6)(g), the Court must have regard to—
(a)
damage to the environment caused by the breach of this Act; and
(b) the
detriment to the public interest resulting from the breach; and
(c) any
benefit (including financial benefit) that the respondent sought to gain by
committing the breach; and
(d) any
other matter it considers relevant.
(8) The power
conferred by subsection (6)(f) or (g) can only be exercised by a Judge of
the Court.
(9) The Council, and
any person with a legal or equitable interest in land to which an application
under this section relates, is entitled to appear and be heard in proceedings
based on the application before a final order is made.
(10) The Court may
make such order in relation to costs of proceedings under this section as it
thinks just and reasonable.
(11) In this
section—
"breach" of this Act includes a threatened contravention of, or failure to
comply with, this Act or a heritage agreement.