Div 4Grant, renewal, conditions and transfer of environmental authorisations

Division 4—Grant, renewal, conditions and transfer of environmental authorisations 38—Applications for environmental authorisations (1) An application for an environmental authorisation must be made to the Authority in such manner and form as is determined by the Authority and must be accompanied by the prescribed application fee. (2) The Authority may, as it considers appropriate, accept a single application from an applicant in respect of different activities of the applicant or activities of the applicant at different locations or may require separate applications. (3) An application for an exemption may be combined with an application for some other environmental authorisation. (4) Where the Authority requires further information to determine the application, the Authority may, by notice in writing served on the applicant no later than two months after the application is made, require the applicant to furnish further specified information in writing. (5) Where further information is required in respect of an application, the application is to be taken not to have been duly made until the information is furnished as required by the Authority. 39—Notice and submissions in respect of applications for environmental authorisations (1) Subject to this section, the Authority must, on receipt of an application for the grant of an environmental authorisation— (a) cause public notice of the application to be published inviting interested persons to make written submissions in relation to the application within a period specified in the notice (being not less than 14 days from the date on which the notice was published); and (b) if the application relates to an activity that is to be undertaken on a particular piece of land—cause notice of the application to be given to the owner or occupier of each piece of adjacent land, inviting the owner or occupier to make written submissions in relation to the application within a period specified in the notice (being not less than 14 days from the day on which the notice is given to the owner or occupier). (1aa) For the purposes of subsection (1)(a), public notice of the application may be published— (a) on a website determined by the Authority; or (b) in a newspaper circulating generally in the State, (or both). (1a) The Authority must, on receipt of an application for an environmental authorisation that would authorise an activity for which a permit would, but for section 106 of the Landscape South Australia Act 2019, be required under that Act, give notice of the application to the authority under that Act to whom an application for a permit for that activity would otherwise have to be made inviting the authority to make written submissions in relation to the application within a period specified in the notice (being not less than 14 days after the notice is given to the authority). (1b) Subsection (1a) does not apply in relation to an activity— (a) to which section 64(1a) applies; or (b) that is development for the purposes of the Planning, Development and Infrastructure Act 2016 and that is authorised by a development authorisation under that Act. (2) The Authority must, if it considers it appropriate in the circumstances, cause the public notice to be published, in addition, in a local newspaper circulating in the area in which activity would be undertaken pursuant to the environmental authorisation if it were granted. (3) Subsection (1) does not apply in relation to— (aa) an application for an exemption from the application of a provision of an environment protection policy if the environment protection policy provides that subsection (1) does not apply in relation to such applications; or (b) an application for a licence to conduct a waste transport business. (4) Notice is not required to be given to an owner or occupier of adjacent land under subsection (1)(b) in circumstances prescribed by regulation. (5) Where written submissions are made in response to a notice published or given under this section, the Authority must forward a copy of the submissions to the applicant and allow the applicant an opportunity to respond, in writing, to the submissions within a period specified by the Authority. (6) A notice to be given to the owner or occupier of adjacent land under subsection (1)(b) may be given by addressing it to the "owner or occupier" and posting it to, or leaving it at, the adjacent land. (7) In this section— adjacent land, in relation to other land, means land— (a) that abuts on the other land; or (b) that is no more than 60 metres from the other land and is directly separated from the other land only by— (i) a road, street, footpath, railway or thoroughfare; or (ii) a watercourse; or (iii) a reserve or other similar open space. 40—Grant of environmental authorisations (1) Subject to this Act, the Authority may grant an environmental authorisation to a person who has made due application for the authorisation and paid the authorisation fee prescribed or determined under the regulations. (2) The Authority must, by notice in writing served on the applicant, advise the applicant of its decision on the application and, in the case of a decision refusing a works approval or licence, state in the notice the reasons for the refusal. (3) Where the Authority grants an exemption under this Part, the Authority must forthwith cause notice of the exemption to be published in the Gazette. 41—Authorisations may be held jointly (1) An environmental authorisation may be held jointly by two or more persons. (2) Where an environmental authorisation is held jointly by two or more persons, those persons are jointly and severally liable where any civil or criminal liability attaches to the holder of the authorisation under this Act. 42—Time limit for determination of applications (1) If the Authority has not advised an applicant for an authorisation of its decision on the application within the prescribed period after the application is made, the applicant may, after giving 14 days notice in writing to the Authority, apply to the Environment, Resources and Development Court for an order requiring the Authority to make its decision on the application within a time fixed by the Court. (2) If an application for an authorisation involves an activity that requires a related approval under the Planning, Development and Infrastructure Act 2016 and that approval has not been obtained at the time that the application is made under this Act, the time period under subsection (1) will not commence until approval is obtained under the Planning, Development and Infrastructure Act 2016. (3) If an application for an authorisation involves an activity for which a financial assurance under section 51 is required and the financial assurance has not been obtained at the time that the application is made under this Act, the time period under subsection (1) will not commence until the Authority receives the prescribed details in relation to the financial assurance. 43—Term and renewal of environmental authorisations (1) Subject to this Act, an environmental authorisation remains in force for a term determined by the Authority and specified in the authorisation on its grant or renewal. (2) An application for the renewal of an environmental authorisation must be made to the Authority in such manner and form as is determined by the Authority and must be accompanied by the prescribed application fee. (3) An application for renewal must be made not less than the prescribed number of days before the date of expiry of the environmental authorisation. (4) The Authority may, in its discretion, grant a late application for renewal provided that the applicant pays the prescribed late application fee. (4a) Before determining an application for renewal, the Authority may, by notice in writing served on an applicant, require the applicant— (a) to undertake public consultation in relation to the application, in accordance with requirements specified in the notice; and (b) to report to the Authority, at a time and in a manner specified in the notice, on the results of the consultation. (5) Subject to any condition of the authorisation excluding or limiting the right of renewal under this section and to the applicant complying with any notice under subsection (4a), an environmental authorisation must be renewed by the Authority on due application under this section and payment of the authorisation fee prescribed or determined under the regulations. (6) The Authority may, of its own initiative and without application by the holder of an environmental authorisation, renew the authorisation if the Authority is satisfied that it is necessary or appropriate for the protection or restoration of the environment that the holder of the authorisation be bound by conditions of an authorisation (and may do so notwithstanding that the activity undertaken pursuant to the authorisation has ceased but only if the activity ceases after the commencement of this subsection). (7) The Authority may renew an authorisation on a late application or under subsection (6) despite the fact that the authorisation has expired and, in that event, the renewal has effect from the end of the term for which the authorisation was previously granted or renewed. 44—Applicants may lodge proposed environment improvement programmes (1) Subject to this section, an applicant under this Part may lodge with the Authority a proposed environment improvement programme to be carried out by the applicant. (2) A proposed environment improvement programme may— (a) be lodged in association with an application for— (i) an exemption from compliance with the general environmental duty under Part 4 in relation to a specified activity; or (ii) an exemption from specified mandatory provisions of an environment protection policy; and (b) consist of a programme (the carrying out of which may be required by conditions of the exemption) setting out action to be taken within specified periods to achieve compliance with the general environmental duty in relation to that activity, or with the mandatory provisions, as the case may be. (3) A proposed environment improvement programme may— (a) be lodged in association with an application for the grant or renewal of a licence; and (b) consist of a programme (the carrying out of which may be required by conditions of the licence) setting out action to be taken within specified periods— (i) to achieve compliance with specified mandatory provisions of an environment protection policy that are to come into operation on a specified future day; or (ii) for the protection, restoration or enhancement of the environment beyond standards required by or under this Act. 45—Conditions (1) The Authority may impose conditions of an environmental authorisation with respect to such matters as are contemplated by this Act or as the Authority considers necessary or expedient for the purposes of this Act. (2) The Authority may impose a condition of an environmental authorisation, or vary or revoke a condition previously imposed by the Authority, by notice in writing to the person holding the authorisation. (3) The Authority may impose or vary a condition of an environmental authorisation— (a) on the granting or renewal of the authorisation; or (ab) if the authorisation is granted or renewed for a term exceeding one year—at any time during the period of three calendar months following the anniversary of the date on which the authorisation was granted or renewed (provided that such conditions may only be of a type described in section 52(1)); or (b) at any time— (i) with the consent of the person holding the authorisation; or (ii) where the Authority considers that it is necessary to impose or vary the condition in consequence of— (A) contravention of this Act by the person holding the authorisation; or (B) risk of material or serious environmental harm; or (C) the making or amendment of an environment protection policy; or (D) the making or amendment of a national environment protection measure; or (iia) if, in the case of a condition imposing a maximum allowable stockpile limit, the Authority considers it necessary to impose or vary the condition in order to promote the circulation of materials through the waste management process; or (iii) as provided by a condition of the authorisation or a provision of this Act or the regulations under this Act. (4) The Authority may revoke a condition at any time. (5) The holder of an environmental authorisation must not contravene a condition of the authorisation. (a) in the case of a body corporate—$120 000; (b) in the case of a natural person—$60 000. (a) for a prescribed condition—the corresponding prescribed expiation fee; (b) for any other condition (other than a reporting-deadline condition)—$1 000. (6) Where the holder of an authorisation (including the holder of an authorisation that has been suspended) fails to comply with a reporting-deadline condition, the Authority may, by notice in writing, require the holder to make good the default and, in addition, to pay the Authority the amount prescribed as a penalty for default. (7) A penalty for default payable under subsection (6) is recoverable by the Authority as a debt due to the Authority. (8) If a requirement under a provision of this Act relates to activities carried on under an environmental authorisation, the requirement will, subject to the terms of the provision— (a) apply in relation to such activities, whether the environmental authorisation authorising the activities was granted before or after the commencement of the provision; and (b) prevail over conditions of such an environmental authorisation to the extent of any inconsistency. (9) In this section— reporting-deadline condition means a condition of a kind referred to in section 52(1)(a) requiring a specified report on the results of tests or monitoring to be made to the Authority before a specified date. 46—Notice and submissions in respect of proposed variations of conditions (1) Subject to this section, if the Authority proposes to vary the conditions of an environmental authorisation, the Authority must first— (a) give notice in writing of the proposed variation to the holder of the authorisation— (ii) inviting the holder of the authorisation to make written submissions in relation to the proposed variation within a period specified in the notice (being not less than 14 days from the day on which the notice is given to the holder); and (b) cause public notice of the proposed variation to be published in a manner and form determined by the Authority to be most appropriate in the circumstances— (ii) inviting interested persons to make written submissions in relation to the proposed variation within a period specified in the notice (being not less than 14 days from the date of publication as specified in the notice for the purpose); and (c) if the proposed variation relates to an activity that is to be undertaken on a particular piece of land—cause notice of the proposed variation to be given to the owner or occupier of each piece of adjacent land— (ii) inviting the owner or occupier to make written submissions in relation to the proposed variation within a period specified in the notice (being not less than 14 days from the day on which the notice is given to the owner or occupier). (1a) Subject to this section, if the Authority proposes to vary the conditions of an environmental authorisation that authorises an activity for which a permit would, but for section 106 of the Landscape South Australia Act 2019, be required under that Act, the Authority must first give notice to the authority under that Act to whom an application for a permit for that activity would otherwise have to be made that— (a) sets out the reasons for the proposed variation; and (b) invites the authority to make written submissions in relation to the proposal within a period specified in the notice (being not less than 14 days after the notice is given to the authority). (2) The Authority must, if it considers it appropriate in the circumstances, cause the public notice to be published, in addition, in a local newspaper circulating in the area in which activity is or is to be undertaken pursuant to the environmental authorisation. (3) Notice of a proposed variation is not required to be given to the holder of the environmental authorisation if— (a) the proposed variation is to be made with consent of the holder; or (b) the proposed variation consists of the revocation of a condition. (4) Public notice under subsection (1)(b) and notice under subsection (1a) are not required if the proposed variation does not result in any relaxation of the requirements imposed for the protection or restoration of the environment by or under this Act on the holder of the environmental authorisation. (4a) Notice is not required to be given to an owner or occupier of adjacent land under subsection (1)(c)— (a) if the proposed variation— (i) does not result in any relaxation of the requirements imposed for the protection or restoration of the environment by or under this Act on the holder of the environmental authorisation; and (ii) will not, in the opinion of the Authority, result in any adverse effect on the adjoining land or on the amenity value of the adjoining land; or (b) in circumstances prescribed by regulation. (5) No notice is required in respect of— (b) a proposed variation of conditions of a licence to conduct a waste transport business (category B) as described in Part A of Schedule 1; or (c) a proposed variation to be made to correct an error or make a change of form (not involving a change of substance); or (d) a proposed variation of a kind prescribed by regulation. (5a) Where written submissions are made in response to a notice published under subsection (1)(b) or given to the owner or occupier of adjacent land under subsection (1)(c), the Authority must forward a copy of the submissions to the holder of the environmental authorisation and allow the holder of the environmental authorisation an opportunity to respond, in writing, to the submissions within a period specified by the Authority. (6) For the purposes of this section, a reference to the variation of conditions includes a reference to the revocation of a condition or the imposition of a condition or further condition after the grant of the authorisation. (7) A notice to be given to the owner or occupier of adjacent land under subsection (1)(c) may be given by addressing it to the "owner or occupier" and posting it to, or leaving it at, the adjacent land. (8) In this section— adjacent land, in relation to other land, means land— (a) that abuts on the other land; or (b) that is no more than 60 metres from the other land and is directly separated from the other land only by— (i) a road, street, footpath, railway or thoroughfare; or (ii) a watercourse; or (iii) a reserve or other similar open space. 47—Criteria for grant and conditions of environmental authorisations (1) In determining— (a) whether to grant or refuse an environmental authorisation; or (b) what should be the term or conditions of an environmental authorisation, the Authority must— (c) have regard to, and seek to further, the objects of this Act; and (d) have regard to the general environmental duty; and (e) have regard to any relevant environment protection policy, and, in relation to an application for exemption from mandatory provisions of an environment protection policy, give effect to any provisions of the policy governing the granting of such exemptions; and (ea) have regard to the waste strategy for the State adopted under the Green Industries SA Act 2004 (if relevant); and (f) have regard to any relevant reports, assessments, environmental impact statement, Assessment Report, development authorisation or other document or requirement under the Planning, Development and Infrastructure Act 2016; and (g) have regard to any relevant environment improvement programme or environment performance agreement or any such proposed programme or agreement; and (h) have regard to any written submissions (and any responses to such submissions) made to the Authority under this Part that are relevant to the matters to be determined; and (i) in relation to any proposed variation of the conditions of an environmental authorisation, have regard to any submissions made by the holder of the authorisation to the Authority under this Part; and (j) where an authority under the Landscape South Australia Act 2019 has made submissions to the Authority in response to an invitation under section 39(1a) or 46(1a), have regard to those submissions. (2) Despite subsection (1) but subject to subsections (2b), (3) and (4), where a person— (a) has been granted— (i) a works approval authorising works for the purposes of a prescribed activity of environmental significance; or (ii) a development authorisation under Part 7 or 8 of the Planning, Development and Infrastructure Act 2016— (A) authorising a development for the purposes of a prescribed activity of environmental significance on each application in respect of that development referred to the Authority in accordance with that Part; or (B) authorising a development or project for the purposes of a prescribed activity of environmental significance; and (b) has complied with the conditions (if any) of the works approval or development authorisation imposed by or at the direction of the Authority, the Authority may not, on due application for such a licence, refuse to grant a licence authorising the person to undertake that prescribed activity of environmental significance. (2a) If an application for an environmental authorisation involves an activity that requires a related approval under the Planning, Development and Infrastructure Act 2016, the Authority must defer its determination of the application under this Act until a relevant development authorisation is obtained under the Planning, Development and Infrastructure Act 2016 and the Authority receives notification of that development authorisation (and any conditions) from the applicant (and if an application for a development authorisation is refused under that Act then, subject to the regulations, the Authority must refuse the application for environmental authorisation under this Act). (2b) If an application for an environmental authorisation involves an activity for which a financial assurance under section 51 is required, the following provisions apply: (a) the Authority must defer its determination of the application under this Act until the applicant provides the Authority with the prescribed details in relation to the financial assurance; and (b) if those details are not provided to the Authority as required, the Authority must, subject to the regulations, refuse the application for environmental authorisation under this Act. (3) The Authority may refuse an environmental authorisation if the Authority is not satisfied that the applicant is a suitable person to be granted the authorisation. (4) In particular, without limiting the effect of subsection (3), the Authority may refuse an environmental authorisation— (a) if the applicant has contravened this Act or any prescribed Act, or has held an environmental authorisation or other authority that has been cancelled or suspended under this Act or any such prescribed Act; or (b) if the applicant is a body corporate and a director of the body corporate— (i) has contravened this Act or any prescribed Act, or has held an environmental authorisation or other authority that has been cancelled or suspended under this Act or any such prescribed Act; or (ii) is or has been the director of another body corporate that has contravened this Act or any prescribed Act, or has held an environmental authorisation or other authority that has been cancelled or suspended under this Act or any such prescribed Act; or (c) on any ground prescribed by regulation. (5) For the purposes of subsection (4), any Act including an Act that has been repealed or an Act of a place other than this State may be declared by regulation to be a prescribed Act. 48—Annual fees and returns (1) This section— (a) applies to an environmental authorisation granted or renewed for a term of two years or more; and (b) does not apply to an environmental authorisation of a prescribed class. (2) The holder of an environmental authorisation must— (a) in each year lodge with the Authority, before the date prescribed for that purpose, an annual return containing the information required by the Authority by condition of the authorisation or by notice in writing; and (b) in each year (other than a year in which the authorisation is due to expire) pay to the Authority, before the date prescribed for that purpose, the annual authorisation fee prescribed or determined under the regulations. (2a) The Authority may, by condition of an environmental authorisation or by notice in writing, require the holder of the authorisation to verify any information required under subsection (2) in such manner as the Authority thinks fit. (3) Where an annual authorisation fee is to be determined by the Authority under the regulations, the Authority must, not less than one month before the date prescribed for payment of the fee, notify the holder of the authorisation of the fee so determined. (4) Where the holder of an authorisation fails to lodge the annual return or pay the annual authorisation fee in accordance with subsection (2), the Authority may, by notice in writing, require the holder to make good the default and, in addition, to pay to the Authority the amount prescribed as a penalty for default. (5) An annual authorisation fee (including any penalty for default) payable under this section is recoverable by the Authority as a debt due to the Authority. (6) In this section— holder of an environmental authorisation includes the holder of an authorisation that has been suspended. 49—Transfer of environmental authorisations (1) Subject to this section and any condition of the authorisation excluding or limiting the right of transfer under this section, the Authority must approve the transfer of an environmental authorisation on due application under this section. (2) The Authority may refuse to approve the transfer of an authorisation if the Authority is not satisfied that the proposed transferee is a suitable person to hold the authorisation. (3) In particular, without limiting the effect of subsection (2), the Authority may refuse to approve the transfer of an authorisation— (a) if the proposed transferee has contravened this Act or any prescribed Act, or has held an environmental authorisation or other authority that has been cancelled or suspended under this Act or any such prescribed Act; or (b) if the proposed transferee is a body corporate and a director of the body corporate— (i) has contravened this Act or any prescribed Act, or has held an environmental authorisation or other authority that has been cancelled or suspended under this Act or any such prescribed Act; or (ii) is or has been the director of another body corporate that has contravened this Act or any prescribed Act, or has held an environmental authorisation or other authority that has been cancelled or suspended under this Act or any such prescribed Act; or (c) on any ground prescribed by regulation. (4) For the purposes of subsection (3), any Act including an Act that has been repealed or an Act of a place other than this State may be declared by regulation to be a prescribed Act. (5) An application for approval of the transfer of an environmental authorisation must be made to the Authority in such manner and form as is determined by the Authority and must be accompanied by the prescribed fee. (6) Where the Authority requires further information to determine the application, the Authority may, by notice in writing served on the applicant no later than one month after the application is made, require the applicant to furnish further specified information in writing. (7) Where further information is required in respect of an application, the application is to be taken not to have been duly made until the information is furnished as required. (8) If the Authority has not advised an applicant for the transfer of an authorisation of its decision on the application within two months after the application is made, the applicant may, after giving 14 days notice in writing to the Authority, apply to the Environment, Resources and Development Court for an order requiring the Authority to make its decision on the application within a time fixed by the Court. 50—Death of person holding environmental authorisation Where the person holding an environmental authorisation dies, a person approved by the Authority is to be taken to hold that authorisation (on the same conditions as were applicable to the deceased) as from the date of the death until the expiration of six months from that date, or until such later day as may be fixed by the Authority. 50A—Avoidance of duplication of procedures etc (1) The purpose of this section is to provide for the avoidance of unnecessary duplication of procedures and compliance requirements under the Commonwealth Act and this Act where an activity requires environmental authorisation under this Act and approval under the Commonwealth Act. (2) Despite any other provision of this Act, the Authority may— (a) accept a Commonwealth Act document as an application, notice or other document for the purposes of this Act if (subject to subsection (5)) the document complies with the requirements of this Act; and (b) direct that a procedure taken under the Commonwealth Act in relation to a Commonwealth Act document that has been accepted by the Authority under paragraph (a) will be taken to have fulfilled the requirement for a procedure in relation to the relevant document under this Act if the requirements of this Act in relation to the procedure have been complied with; and (c) instead of the Authority, or some other person, preparing a plan, report, statement, assessment or other document under this Act, adopt or accept the whole or part of a document (whether a plan, report, statement, assessment or other document of the same kind or not) used, or to be used, for the purposes of the Commonwealth Act as the document required under this Act if (subject to subsection (5)) the document has been prepared in compliance with this Act and complies with the requirements of this Act. (3) To avoid doubt, where a controlled action under the Commonwealth Act is an activity or part of an activity, or includes an activity, for which an environmental authorisation is required under this Act, the Authority may, when considering an application for an environmental authorisation, or for the variation of an environmental authorisation, for the activity, use information and other material provided to the Commonwealth Minister under the Commonwealth Act for the purpose of deciding whether to give his or her approval to the controlled action under that Act. (4) Where a controlled action under the Commonwealth Act is an activity or part of an activity, or includes an activity, for which an environmental authorisation is required under this Act, the Authority— (a) must, if the Commonwealth Minister has given his or her approval to the controlled action, consider whether the conditions (if any) to be imposed on the authorisation should be consistent with the conditions (if any) attached to the Commonwealth Minister's approval under the Commonwealth Act; (b) may impose a condition on the authorisation that requires compliance with all or some of the conditions attached to the Commonwealth Minister's approval under the Commonwealth Act. (5) A document accepted or adopted under subsection (2)— (a) may be in a form that does not comply with the requirements of this Act; and (b) may include information or other material that is irrelevant for the purposes of this Act. (6) Once a document is accepted or adopted under subsection (2) or a direction has been given in relation to a procedure under subsection (2)(b), the document or procedure will not be invalid or ineffective for the purposes of this Act because a court, tribunal or other authority has decided that it is invalid or ineffective for the purposes of the Commonwealth Act. (7) In this section— assessment report means— (a) an assessment report as defined in the Commonwealth Act by reference to section 84(3), 95, 100 or 105 of that Act; or (b) a report under section 121 of the Commonwealth Act; Commonwealth Act means the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth; Commonwealth Act document means— (a) a referral under section 68, 69 or 71 of the Commonwealth Act; or (b) information given by a person to the Minister under the Commonwealth Act under section 86 of that Act; or (c) information and invitation published by a proponent under section 93 of the Commonwealth Act; or (d) guidelines prepared under section 97 or 102 of the Commonwealth Act; or (e) a draft report prepared under section 98 of the Commonwealth Act; or (f) a finalised report prepared under section 99 of the Commonwealth Act; or (g) a draft statement prepared under section 103 of the Commonwealth Act; or (h) a finalised statement prepared under section 104 of the Commonwealth Act; or (i) an assessment report.