Civil enforcement proceedings

Tasmanian citizens are able to initiate legal proceedings to safeguard their environment.

Such action can be carried out under:

• Planning law - the Land Use Planning and Approvals Act

• Pollution laws - the Environmental Management and Pollution Control Act.

These two Acts are very widely used and you will usually hear them referred to as LUPAA and EMPCA.

For instance you can appeal against someone who is breaching (or likely to breach) a planning permit or planning scheme.

Or you can appeal against someone who is causing (or likely to cause) environmental harm, including pollution.

These actions are called Civil Enforcement.

Any citizen who has a ‘proper interest’ in the relevant action (such as a neighbour who is affected by pollution) is able to take Civil Enforcement proceedings by making an application to the Resource Management and Planning Appeal Tribunal - commonly referred to as the Tribunal.

You can initiate this action using Section 64 of LUPAA.

• uses land, undertakes development or does any other act that is contrary to any State Policy, Planning Scheme, Special Planning Order or a permit - or is likely to do any of these

• breaches the condition of a development permit or a determination of the Tribunal, or is likely to do so

• undertakes a prohibited development - that is, carries out a development or activity or change-of-use without the necessary planning permits

• does not comply with the conditions of a planning permit

Important note: actions under LUPAA must be commenced within 2 years of the date of the breach you are concerned about.

The Tasmanian Planning Commission (TPC) may also bring Civil Enforcement proceedings for actual or likely breaches that are brought to their attention.

Note also that municipal councils must take action to uphold their Planning Schemes. Councils can be prosecuted for failing to enforce their planning schemes - Hobart City Council has already been taken to court under these provisions (see Section 63A of LUPAA).

You can initiate this action under Section 48 of EMPCA.

• has engaged, is engaging, or is proposing to engage in conduct in contravention of the Act

• has refused or failed or is refusing or failing to take any action required by the Act

• has caused environmental harm.

• does something that causes an actual adverse effect on the environment or threatens human health

• emits a pollutant that unreasonably interferes with your enjoyment of your property (such as consistently releasing dust or making noise so that you cannot sleep)

• breaches the conditions of an Environment Protection Notice (EPN), an Environmental Improvement Plan (EIP) or conditions in their Planning Permit.

Important Note: You must bring proceedings within 3 years of the date of the alleged contravention that causes environmental harm.

The Director of Environmental Management and the council that issued the permit may also bring Civil Enforcement proceedings for breaches of EMPCA that are brought to their attention.

• A local council

• The Director of Environmental Management (in EMPCA proceedings only)

• The Tasmanian Planning Commission (in LUPAA proceedings only)

• An ordinary citizen who can show that they have a proper interest in the issue they are taking action against.

The Tribunal will decide if you have a proper interest or not. It usually means that you are affected by the pollution or breach of the Planning Scheme or permit, more than other members of the public.

For example, you may live near the development, teach at a school affected by the pollution or be part of a Coastcare group responsible for looking after the area of beach being polluted.

You can download an Application Form from the Tribunal website.

You will need to make sure that you have enough evidence to show that a breach has been, or will be, carried out.

If you are thinking about taking such action, the Environmental Defenders Office has produced a very helpful publication: “GOING IT ALONE - A Practical Guide for Unrepresented Litigants in the Resource Management and Planning Appeal Tribunal”. Contact the EDO on 6223 2770 to order a copy.

☛ Go to Chapter 14 for information about how the Tribunal works generally

• You can apply ex parte – that is, without the alleged offender being present.

• You should prepare a statutory declaration(s) for use at the ex parte hearing. These should be lodged at the Tribunal with your application. There also needs to be evidence of the ownership of the land in question.

• If the Tribunal is satisfied that there are sufficient grounds for an appeal to proceed, it must issue a summons requiring the alleged offender to appear before the Tribunal to show cause why an order should not be made. The Tribunal will, if appropriate, hear additional oral evidence (eg from an expert or person affected by the breach).

• The Tribunal may also make any other orders necessary at this time (eg temporary orders to prevent harmful activity taking place before the hearing takes place).

• A date for a preliminary hearing will be set (usually within 14 days of you lodging your application) depending on the urgency of the matter.

The alleged offender will be asked if he/she wishes to show cause why the Tribunal should not issue an order.

• If he/she does not wish to show cause, the Tribunal can make an order relying on evidence already before it.

• If he/she does wish to show cause, the matter will be set down for hearing at a later date.

• A date may also be set for a mediation conference to try to resolve the issue.

If the Tribunal is satisfied, on the balance of probabilities, that the alleged offender has contravened the Land Use Planning and Approvals Act or the Environmental Management and Pollution Control Act (or if the alleged offender fails to respond to the summons or does not give evidence) the Tribunal may require him/her to comply with a wide range of Orders:

• stops contravening the Act or the permit

• is precluded from carrying out any use or development in relation to the land in respect of which the failure to comply or contravention relates

• makes good the contravention or default in a manner, and within a specified period, set out by the Tribunal

The Tribunal may also make a temporary order on an 'ex parte' application (where the alleged offender is not present) to stop any activity while the matter is being decided. Generally, a temporary order will not be made unless you are willing to give an undertaking to pay any damages the respondent may suffer due to the temporary order (click HERE for information about costs and damages).

An alleged offender who contravenes, or fails to comply with, an order or a temporary order is guilty of an offence.

The Tribunal may, for example, require the offender to:

• stop the harmful activity, or refrain from a course of action

• repair damage that has been done

• pay for the repairs to be carried out

• comply with an Environment Protection Notice or enter into an Environmental Agreement or an Environmental Improvement Program (click HERE for more information about these options).

• cease (or not commence) any use of, or development of, the land in question

• pay costs incurred to prevent or mitigate environmental harm, or to make good the resulting environmental damage

The Tribunal may also order the polluter to pay you compensation if you suffer loss or damage to property. It may also order the polluter to pay your costs and expenses of taking action.

You can appeal to the Supreme Court against an order made by the Tribunal (or a decision not to make an order).

However, you cannot appeal about the merits of the decision, only upon a point of law.

You must appeal within 30 days of the Tribunal's decision.

☛ Go to Chapter 14 for more information about Tribunal and Court processes

• Land Use Planning and Approvals Act 1993
• Environmental management and Pollution Control Act 1994
• Resource Management and Planning Appeal Tribunal Act 1993

(☛ See below for enforcement provisions.)

ENVIRONMENTAL MANAGEMENT AND POLLUTION CONTROL ACT 1994

(1) Where –

• a) a person has engaged, is engaging or is proposing to engage in conduct in contravention of this Act; or

• b) 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; or

• c) a person has caused environmental harm by contravention of this Act, any other Act or the repealed Act –

the Director, a council or a person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter may apply to the Appeal Tribunal for an order under this section.

(2) The application may be made ex parte and, if the Appeal Tribunal is satisfied that there are sufficient grounds, it must issue a summons requiring the respondent to appear before the Appeal Tribunal to show cause why an order should not be made under this section.

(3) If after hearing –

• a) the applicant and the respondent; and

• b) any other person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings –

the Appeal Tribunal may, if it considers it appropriate to do so, by order do any of the things specified in subsection (5).

(4) If 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 Appeal Tribunal may, if it considers it appropriate to do so, by order do any of the things specified in subsection (5).

(5) The Appeal Tribunal may do all or any of the following:

• a) require the respondent to refrain, either temporarily or permanently, from the act or course of action that constitutes the contravention of, the potential contravention of, or the failure to comply with, this Act;

• b) preclude, for a period specified by the Appeal Tribunal, the respondent from carrying out any use or development in relation to the land in respect of which the contravention relates;

• c) require the respondent to make good the contravention or default in a manner, and within a period, specified by the Appeal Tribunal;

• d) require compliance with any environmental agreement, environmental improvement programme or environment protection notice;

• e) require the payment of reasonable costs and expenses incurred by the Board or any other public authority as a result of taking action to prevent or mitigate environmental harm caused by a contravention of this, or any other, Act or to make good resulting environmental damage;

• f) require the payment of compensation for the injury, loss or damage, or for payment of the reasonable costs and expenses incurred to a person who has suffered injury or loss or damage, to property as a result of a contravention of this, or any other, Act including costs and expenses incurred in taking action to prevent or mitigate such injury, loss or damage;

• g) require payment (for the credit of the Environment Protection Fund) of an amount in the nature of exemplary damages determined by the Appeal Tribunal.

(6) If in proceedings under this section the Appeal Tribunal 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 a temporary order under this section, the Appeal Tribunal may at any time during those proceedings make such an order.

(7) A temporary order –

• a) may be made on an ex parte application before a summons has been issued under subsection (2); and

• b) may be made subject to such conditions as the Appeal Tribunal thinks fit; and

• c) is not to operate after the proceedings in which it is made are finally determined.

(8) A person must not contravene an order or a temporary order under this section.

Penalty: Fine not exceeding 500 penalty units.

(9) Where the Appeal Tribunal makes an order under subsection (5)c) and the respondent fails to comply with the order within the period specified by the Appeal Tribunal, the Director may, by leave of the Appeal Tribunal, cause any work contemplated by the order to be carried out, and may recover the costs of that work, as a debt, from the respondent.

(10) The Appeal Tribunal may, if it thinks fit, adjourn proceedings under this section in order to permit the respondent to make an application for a permit that should have been but was not made, or to remedy any other default.

(11) The Appeal Tribunal may, on an application under this section, exercise the powers conferred on it by section 62 (1) of the Land Use Planning and Approvals Act 1993 in relation to any use or development of land as if the application were a hearing of an appeal.

(12) For the purposes of the Resource Management and Planning Appeal Tribunal Act 1993, an application under this section is deemed to be an appeal.

(13) Proceedings under this section may be commenced at any time within 3 years after the date of the relevant event referred to in subsection (1).

LAND USE PLANNING AND APPROVALS ACT 1993

(1) Where a person contravenes or fails or is likely to contravene or fail to comply with a provision of this Part, the Commission, a planning authority or a person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter may apply to the Appeal Tribunal for an order under this section.

(2) The application may be made ex parte and, if the Appeal Tribunal is satisfied that there are sufficient grounds, it must issue a summons requiring the respondent to appear before the Appeal Tribunal to show cause why an order should not be made under this section.

(2A) If an application under this section is made by a person other than the planning authority in whose municipal area is situated the land to which the application relates, the planning authority is taken to be a party to the application.

(2B) At any time after receiving an application made under this section by a person other than the planning authority in whose municipal area is situated the land to which the application relates, the Appeal Tribunal may direct that the planning authority be made an applicant in the application.

(2C) At any time after receiving an application made under this section by a person other than the Commission, the Appeal Tribunal on the request of the Commission may direct that the Commission be made an applicant in the application.

(3) If –

• a) after hearing–

• - the applicant and the respondent; and

• - any other person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings–

the Appeal Tribunal is satisfied, on the balance of probabilities, that the respondent to the application has contravened or failed or is likely to contravene or fail to comply with a provision of this Part; 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 Appeal Tribunal may, by order –

• c) require the respondent to refrain, either temporarily or permanently, from the act, or course of action, that constitutes the contravention of, or failure to comply with, this Part; and

• d) preclude, for a period specified by the Appeal Tribunal, the respondent from carrying out any use or development in relation to the land in respect of which the failure to comply or contravention relates; and

• e) require the respondent to make good the contravention or default in a manner, and within a period, specified by the Appeal Tribunal.

(4) 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.

(5) If, in proceedings under this section, the Appeal Tribunal 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 a temporary order under this section, the Appeal Tribunal may at any time during those proceedings make such an order.

(6) A temporary order –

• a) may be made on an ex parte application before a summons has been issued under subsection (2); and

• b) may be made subject to such conditions as the Appeal Tribunal thinks fit, including a condition that requires an undertaking by the applicant, not being a planning authority or the Crown, at whose instance the temporary order is granted to pay to the respondent any damages that the respondent may sustain because of the order; and

• c) is not to operate after the proceedings in which it is made are finally determined.

(6A) An application for an order for payment of damages is to be made to the Appeal Tribunal.

(6B) The Appeal Tribunal may order the applicant at whose instance the temporary order is granted to pay all or part of the damages, as determined by the Appeal Tribunal, that the respondent may sustain because of the order.

(7) A person who contravenes, or fails to comply with, an order or a temporary order under this section is guilty of an offence.

Penalty: Fine not exceeding 500 penalty units.

(8) Where the Appeal Tribunal makes an order under subsection (3)(e) and the respondent fails to comply with the order within the period specified by the Appeal Tribunal, the Commission or a planning authority may, by leave of the Appeal Tribunal, cause any work contemplated by the order to be carried out, and may recover the costs of that work, as a debt, from the respondent.

(9) The Appeal Tribunal may, if it thinks fit, adjourn proceedings under this section in order to permit the respondent to make an application for a permit that should have been but was not made, or to remedy any other default.

(10) The Appeal Tribunal may, on an application under this section, exercise the powers conferred on it by section 62(1) in relation to any use or development of land as if the application were a hearing of an appeal.

(11) For the purposes of the Resource Management and Planning Appeal Tribunal Act 1993, an application under this section is deemed to be an appeal.

(12) The Appeal Tribunal must make such orders in relation to the costs of proceedings under this section as it thinks fit and in making such orders must take into account –

• a) the result of the proceedings; and

• b) whether a party has raised frivolous or vexatious issues at the hearing; and

• c) whether any party has unnecessarily or unreasonably prolonged the hearing or increased the costs of it; and

• d) the capacity of the parties to meet an order for costs.

(13) If the Appeal Tribunal is of the opinion that an application under this section is frivolous or vexatious, the Appeal Tribunal must dismiss the application and order the applicant to pay an amount determined by the Appeal Tribunal as being the costs of the proceedings in relation to the application and the costs of any person referred to in subsection (3)(a)(ii).

(14) An order under subsection (12) or (13) may be registered in a court having jurisdiction for the recovery of debts up to the amount ordered to be paid by or under the order.

(15) Proceedings for the enforcement of an order under subsection (13) may be taken as if the order were a judgment of the court in which the order is registered.

(16) Proceedings under this section may be commenced at any time within 24 months after the date of the alleged contravention of, or failure to comply with, a provision of this Part.

LAND USE PLANNING AND APPROVALS ACT 1993

(1) A planning authority that does not take all reasonable steps to ensure that a planning scheme or special planning order that has effect in respect of an area within its municipal district is complied with is guilty of an offence punishable on summary conviction.

(2) A planning authority convicted of an offence against subsection (1) is liable to a fine not exceeding 500 penalty units, and a planning authority who is so convicted in respect of a continuing contravention of this section –

• a) is liable, in addition to the penalty otherwise applicable to that offence, to a fine for each day during which the contravention continued of not more than 500 penalty units; and

• b) if the contravention continues after the planning authority is convicted, is guilty of a further offence and is liable, in addition to the penalty otherwise applicable to that further offence, to a fine for each day during which the contravention continued after that conviction of not more than 50 penalty units.