1. The time for filing appeal P/2026/11 is extended to 20 January 2026.

Environment and planning - Environmental Protection Notice - Application to extend time for filing notice of appeal

Environmental Management and Pollution Control Act 1994

Tasmanian Civil and Administrative Tribunal Rules 2021

Tasmanian Civil and Administrative Tribunal Act 2020

Land Use Planning and Approvals Act 1993

Griggs v Kingborough Council [2025] TASCAT 229;

Ghimire v Karriview Management Pty Ltd [2019] FCA 1108;

Recycal Pty Ltd v Environmental Protection Authority Tasmania [2023] TASCAT 1

1. On 5 January 2026 a delegate of the respondent, the Director of the Environment Protection Authority (the EPA), issued an Environment Protection Notice number 12591/1 (the EPN) to the appellant, the Cornwall Coal Company Pty Ltd.
2. The EPN asserts that the appellant is in contravention of s 51C of the Environmental Management and Pollution Control Act 1994 (EMPCA) by conducting a mine in a certain area without a permit or authority, and that environmental harm is being caused, or is likely being caused, by that activity. The relevant area is adjacent to an area which the appellant is permitted to mine.
3. The EPN requires that the appellant comply with certain conditions set out in the EPN, which include ceasing the mining activity and the taking of steps to rehabilitate the relevant area.
4. The accepted position of both parties is that the EPN was served on the appellant on 5 January 2026.
5. On 20 January 2026 the appellant filed an appeal in respect to the EPN under s 44(6) of EMPCA.
6. The notice of appeal seeks to have the EPN revoked on the grounds that there is no evidential or administrative basis for its issue and that it raises planning controls in respect of which any proceedings would properly arise under the Land Use Planning and Approvals Act 1993 (LUPAA).
7. I observe that the appeal was filed on 20 January 2026 on an initiating form for general applications in the Tribunal's original jurisdiction, but not the correct initiating form which is the general review form for applications for review of decisions. The form was to the effect of the approved form and was accepted by the Registry for filing: see the Tasmanian Civil and Administrative Tribunal Rules 2021 r 5 and r 16. The issue was raised with the appellant and an amended form was subsequently filed on 10 February 2026.

1. The appellant contends that the appeal was filed within time. The respondent says that the period for filing expired on 19 January and that the appeal was filed one day late.
2. The period for filing an appeal is "within 14 days from" the date of service of the EPN: s 44(3)(f) EMPCA. The period in this case is therefore 14 days from 5 January 2026.
3. There is no provision for the reckoning of time to file an appeal in EMPCA. Rule 10(2) of the Tasmanian Civil and Administrative Tribunal Rules 2021 provides for the reckoning of time, but only in respect to "any period of time fixed by these rules, or by any order or other decision of the Tribunal or a registrar or by any document in any proceedings", not in respect to the commencement of proceedings. Section 29 of the Acts Interpretation Act 1931 will therefore apply:

(1) Where by or under any Act any period of time, dated or reckoned from a given day, act, or event, is prescribed or allowed for any purpose that period of time shall be reckoned exclusively of that day, or of the day of that act or event, as the case may be.

(2) Where by or under an Act a period is expressed to be a specified number of clear days or a specified number of days at least, that period shall be reckoned exclusively both of the given day or of the day of the specified act or event and also of the day on which the purpose is to be fulfilled.

(3) Where any time, or the first or last day (according as it is reckoned backwards or forwards) of any period of time, prescribed or allowed for the doing of any act or thing falls on a Sunday or on any day which is a statutory holiday as defined in the Statutory Holidays Act 2000 or a public holiday throughout the State or in that part of the State where the act or thing is to be, or may be, done (which days are in this section referred to as excluded days) the act or thing -

(a) if the time or period of time is reckoned forwards, shall be considered as done in due time if it is done on the next day afterwards, not being an excluded day; and

(b) if the time or period of time is reckoned backwards, shall not be considered as done in due time unless it is done on the next day before, not being an excluded day.

(4) Where the last day of the period prescribed or allowed for the filing or registration of a document or instrument falls on a day on which the office in which the filing or registration is to be effected is not open, the document or instrument may be filed or registered on the next ensuing day on which the office is open.

(5) Where any act or proceeding is directed or allowed to be done on a particular day so fixed or prescribed that subsection (3) is not applicable, then if that day happens to be an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being an excluded day.

(6) When an act or proceeding is directed or allowed to be done or taken within any time not exceeding 6 days, excluded days shall not be reckoned in the computation of time.

1. None of ss 29(2)-(6) apply to this situation. The appellant contends that the 14-day period is 14 clear days and referred to the Acts Interpretation Act 1931, but did not point to a particular provision of the Act. It is likely that the appellant is referring to s 29. Section 29(2) provides for the reckoning of clear days, which is where the period is exclusive of the first day and the last day. Section 29(2) only applies where the period is expressed to be "a specified number of clear days", or "a specified number of days at least". Neither of those cases apply in respect to the period in s 44(3)(f).
2. Time will therefore be reckoned in accordance with s 29(1). As time "is to be reckoned by reference to a given day or event", being the date of service, "the day of the given event is not to be counted". Accordingly, the day of service, 5 January 2026, is not to be included in the calculation of time. Excluding 5 January 2026 and commencing on 6 January 2026, the fourteenth day is 19 January 2026. The appeal was filed on the following day, 20 January 2026 and so is out of time.
3. The appellant's reasoning the appeal was lodged within time is that if 5 January is excluded then the fourteenth day from 6 January is 20 January. Clearly, however, that must also exclude either 6 or 20 January. Counting day by day including 6 January and 20 January, the total number of days in that span is 15 days.
4. I am therefore satisfied that the appeal was filed one day out of time.

1. In the alternative to its contention that the appeal was filed within time the appellant has applied for an extension of time. The EPA opposes the application.
2. Clause 6(2) of Pt 8 of Sch 2 of the Tasmanian Civil and Administrative Tribunal Act 2020 (the TASCAT Act) provides a discretionary power to extend time:

(2) The Tribunal may, on written application by a person, extend the time for the institution by the person of an appeal.

3. Clause 6(3) sets out specific matters that the Tribunal is to take into account in exercising the discretion to extend time, but only in respect to appeals of planning decisions filed under s 61 of the Land Use Planning and Approvals Act 1993 (LUPAA). Those matters are not required to be taken into account in respect to an application to extend time for an appeal arising under EMPCA. However, cl 6(3) does identify matters that would be relevant generally to an application to extend time, being the reason that the appeal was not lodged within the required period, the time between lapsed and filing, and whether it would be reasonable to expect that an application to extend time could have been lodged before the date on which it was lodged.
4. In Griggs v Kingborough Council [2025] TASCAT 229 at [17] I applied the following passage from the decision of Colvin J in Ghimire v Karriview Management Pty Ltd [2019] FCA 1108 at [8] as guidance in respect to the matters generally relevant on an application to extend time:

There are a number of matters that the Court will usually take into account when considering whether to grant an extension of time. Speaking broadly, special circumstances need not be shown but the Court must be positively persuaded that it is proper for there to be an extension. As to particular matters: > > (1) There should be an adequate explanation for the delay. Generally, mere ignorance of the time limit is not a satisfactory explanation for the delay. A party wanting to appeal may be expected to investigate or inquire about the procedure and time limits for bringing an appeal. > > (2) The extent to which the applicant has taken steps to challenge or dispute the relevant decision in the intervening period will be considered. > > (3) If the outcome can be confidently predicted at the leave stage, it will seldom be in the interests of justice to grant leave where an appeal has little or no prospects of success because of the considerable additional cost and the impact on other litigants who have abided by time limits and are waiting for their appeals to be heard. However, the merits should be examined at a reasonably impressionistic level. The Court does not go into the merits in great detail and assesses the merits in a fairly rough and ready way. > > (4) The Court's view as to the strength of the claim may itself be a matter that is to be weighed with other matters so the fact that the claim might be viewed at the time of the application for an extension to be strong or weak is relevant. > > (5) Prejudice to the respondent, including prejudice that will be occasioned by having to defend the proceedings, is a material factor against the grant of an extension. The extent of that prejudice (which may vary depending upon the financial and other circumstances of the respondent) must be considered with some care. > > (6) Consequences for third parties should be brought to account, particularly more wide ranging effects that might flow if an appeal were allowed despite a period of delay. > > (7) These matters are not exhaustive and they are not rules to be rigidly applied. Also, it must be kept in mind that the Court has a general discretion to be exercised by reference to the particular circumstances of each case.

1. The appellant says that the relevant delay is one day. The appellant explains its delay on the basis of its incorrect construction of the provisions setting the appeal period. For about the first half of the period to appeal, until 12 January 2026, the appellants legal practitioner was away. It points out that it challenges the entire EPN on its terms. It contends that there is apparent merit to the appeal. It contends that there is no identifiable prejudice that would arise from an extension of time. It contends that a refusal of the application to extend time may have serious consequences for the operation of a certain mining lease.
2. The EPA opposes an extension of time. It says that the appellant has not provided an adequate explanation for the appeal not being lodged within time and ignorance of the time limit is not a satisfactory explanation for the delay. The EPA says that the appellant took steps to obtain proper approval for the mining works on 12 January 2026 by approaching the landowner and Break O'Day Council about making a minor amendment to an existing permit to include an expanded extraction pit area, and on 19 January 2026 by making a new development application for a permit seeking retrospective approval of the expanded mining area.
3. The EPA contends that the appellant has little or no prospects of success. It says that an evidential basis is not required for the issuing of an EPN, rather that the delegate of the Director is to achieve a level of satisfaction which is explained in the EPN and in respect of which evidence is not required to be produced. The EPA says that EMPCA does not require any administrative reasons to be identified. The EPA also says that the EPN does not raise any issues in respect to planning controls. Mining activity is a level 2 activity as defined in Sch 2 of EMPCA, and as such any application for a planning permit must be referred to the Board of the EPA for assessment under either s 25 or s 27 of EMPCA. The requirements of EMPCA in respect to level 2 activities are not the same thing as the development and use of land under LUPAA. Accordingly, the EPA contends that the appeal raises no valid ground.
4. The EPA contends that there is a risk of environmental harm from the mining works, which extend outside an area of approval for mining. It contends that it will suffer prejudice from an extension of time as it has a duty to enforce the requirements of EMPCA and while the EPN is under appeal there is uncertainty around its validity which inhibits the EPA from taking regulatory enforcement action. The EPA notes that while the appeal was filed only one day out of date there was further delay in the appellant filing the amended form and notice being given to the EPA.
5. The EPA says that in Griggs v Kingborough Council (supra) the appeal was not considered filed until it had been filed using the correct form. I observe in that respect that in that case no form had been filed and the appellant purported to institute the appeal by way of a letter. Although the appellant i9n this case has used the wrong form, it did seek to institute the appeal by way of a prescribed initiating form.
6. The EPA also points out that the landowner has applied to join the appeal and will suffer prejudice if an extension of time is granted, although the EPA does not identify particular prejudice.

1. The appellant has provided an explanation for the delay in filing. It is not a case of ignorance of the time limit, but rather a mistaken legal construction of the provision providing the time limit.
2. The Appeal was filed only one day out of time. The application to extend time was not filed until 23 February 2026, which is a delay that might be seen as unreasonable given the subject of the EPN and the allegation of environmental harm or likely harm. However, it appears that the delay in making the application was because the appellant, wrongly as it turned out, insisted that it was within time, rather than it simply being dilatory.
3. I note that in the week before the period for filing expired the appellant took steps in respect to the obtaining of planning approval for the extended mining area, and so demonstrated that it did not simply ignore the effect of the EPN until the last moment.
4. I note that no special prejudice has been identified beyond the general prejudice that would arise from an extension of time, both in respect to the EPA and the potential third party. The appeal will not act as a stay of the operation of the EPN: s 77(1) TASCAT Act. That being the case, the appellant is currently obliged to comply with the EPN and the issues of prejudice identified by the EPA largely fall away. Although I accept that the appeal raises some uncertainty in respect to the EPN, it is a matter for the EPA to make forensic decisions concerning the taking of any steps to enforce it.
5. The appellant's case insofar as it is identified by the grounds of the notice of appeal does not appear on its face to be particularly strong. However, it does seek to impugn the factual basis for the issue of the EPN. Although the EPA correctly points out that an EPN is not required to set out the evidence on which it is based, the issue of an EPN is dependent on the Director, or his delegate, forming a particular satisfaction under s 44(1). While s 44(1) does not prescribe a standard of satisfaction, it must be formed on findings or inferences of fact which are supported by some probative material or logical grounds: Recycal Pty Ltd v Environmental Protection Authority Tasmania [2023] TASCAT 1 at [40]. The appeal of an EPN falls within the review jurisdiction of the Tribunal in Div 3 of the TASCAT Act and by s 75(2) is to be by way of a hearing de novo: see Recycal Pty Ltd v Environmental Protection Authority Tasmania at [37]-[38]. It will be necessary for the Tribunal to consider whether it reaches the level of satisfaction required for the issue of the EPN. It is therefore open for the appellant to advance a case related to the evidentiary basis for the formulation of the requisite satisfaction. I am not satisfied that the appeal is one which has little or no prospects of success such that the outcome can be so confidently predicted at this stage as to warrant refusing the application.
6. I am satisfied that the interests of justice favour the granting of the application to extend time.

1. Accordingly,
   1. The time for filing appeal P/2026/11 is extended to 20 January 2026.