110Notice requiring authority holder to take action or stop work

110 Notice requiring authority holder to take action or stop work S. 110(1) substituted by Nos 82/2000 s. 64(1), 63/2006 s. 51(1). (1) This section applies if the Minister believes on reasonable grounds that— S. 110(1)(a) amended by No. 84/2012 s. 6(2). (a) an act or omission by the holder of an authority is likely to result in a risk to public safety, the environment, land, property or infrastructure; or (b) the holder of an authority— (i) has contravened or is likely to contravene this Act or the regulations; or (ii) has not complied with any condition to which the authority is subject or any condition specified under section 44; or (iii) has not complied with any relevant planning scheme or permit; or (iv) has not complied with any condition applying to the carrying out of the work plan under the authority; or (v) has undertaken work on land otherwise than in accordance with the work plan under the authority; or S. 110(1)(b)(vi) inserted by No. 32/2019 s. 45(1). (vi) has not complied with a declared mine rehabilitation plan; or S. 110(1)(ba) inserted by No. 32/2019 s. 45(2). (ba) a former licensee or former holder of a mining licence for declared mine land has not complied with a declared mine rehabilitation plan; or S. 110(1)(c) amended by No. 6/2009 s. 36(1). (c) a former licensee or former holder of an extractive industry work authority has failed to comply with section 81. S. 110(2) amended by No. 86/1993 s. 34, substituted by No. 82/2000 s. 64(1). (2) The Minister may, by notice served on the holder of the authority— S. 110(2)(a) substituted by No. 84/2012 s. 6(3). (a) require the taking within a specified period of any action necessary— (i) to remedy the contravention or non‑compliance; (ii) to avoid the likely contravention or non-compliance; (iii) to avoid, minimise or remove the risk to public safety, the environment, land, property or infrastructure; (b) prohibit the doing of any activity or class of activity by the holder of the authority for a specified period or until the occurrence of a specified event; (c) require the holder of the authority to supply any plans or other information specified in the notice; (d) require the holder of the authority— (i) to provide monitoring equipment; (ii) to carry out any monitoring or surveys specified in the notice; (iii) to have any audit or assessment specified in the notice carried out by an appropriately qualified person or body; (iv) to give the Minister a report detailing the results of the monitoring, surveys, audit or assessment. S. 110(3) substituted by No. 82/2000 s. 64(1), amended by No. 84/2012 s. 6(4). (3) The holder of an authority must comply with a notice issued under subsection (2). Penalty: In the case of a corporation, 2500 penalty units. In the case of a corporation, 300 penalty units. S. 110(3A) inserted by No. 84/2012 s. 6(5). (3A) If a holder of an authority is found guilty of an offence against subsection (3), the court may, in addition to imposing any penalty, make— (a) an order that the holder must comply with the notice or take specified action to comply with the notice; or (b) any other order that it considers appropriate. S. 110(4) substituted by No. 52/1998 s. 311(Sch. 1 item 64.13), amended by Nos 82/2000 s. 64(2), 84/2012 s. 6(6). (4) Subject to subsection (5A) and section 110AA(4), a person whose interests are affected by a decision of the Minister to serve a notice under subsection (2) or vary a notice under subsection (5) may apply to the Tribunal for review of the decision. S. 110(4A) inserted by No. 52/1998 s. 311(Sch. 1 item 64.13). (4A) An application for review must be made within 28 days after the later of— S. 110(4A)(a) amended by No. 84/2012 s. 6(7)(a). (a) the day on which the notice, or notice of the variation, is served; S. 110(4A)(b) amended by No. 84/2012 s. 6(7)(b). (b) if, under the **Victorian Civil and Administrative Tribunal Act 1998**, the person requests a statement of reasons for the decision to serve or vary the notice, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given. S. 110(5) substituted by No. 82/2000 s. 64(3), amended by No. 84/2012 s. 6(8). (5) The Minister may, by notice served on the holder of the authority, vary or cancel a notice issued under subsection (2). S. 110(5A) inserted by No. 84/2012 s. 6(9). (5A) A person cannot apply under subsection (4) for review of the variation of a notice if the purpose of the variation is limited to— (a) correcting a minor or technical error in the notice; or (b) extending the period within which an action required by the notice must be taken; or (c) reducing the period during which the doing of any activity or class of activity is prohibited. S. 110(6) substituted by Nos 82/2000 s. 64(3), 6/2009 s. 36(2). (6) For the purposes of this section— (a) in the case of a mining licence, service of a notice on the manager appointed to control and manage the licence worksites is deemed to be service of the notice on the licensee; and (b) in the case of an extractive industry work authority, service of a notice on the quarry manager or person appointed to manage the extractive industry operation is deemed to be service on the holder of the work authority. S. 110(7) inserted by No. 82/2000 s. 64(3), amended by Nos 6/2009 s. 36(3), 59/2010 s. 42(3), repealed by No. 68/2014 s. 57(b). S. 110(8) inserted by No. 63/2006 s. 51(2), amended by No. 6/2009 s. 36(4). (8) In subsections (2) to (6) a reference to the holder of an authority or a licensee includes a reference to a former licensee or former holder of an extractive industry work authority. S. 110AA inserted by No. 84/2012 s. 7. 110AA Injunction for non-compliance with notice (1) The Minister may apply to the Supreme Court for an injunction— (a) compelling the holder of an authority to comply with a notice served on the holder under section 110; or (b) restraining the holder of an authority from contravening the notice. (2) The Minister may apply for an injunction under subsection (1) whether or not— (a) an application has been made under section 110(4) for review of a decision to serve or vary the notice; or (b) proceedings have been brought for an offence against this Act or the regulations in relation to the notice; or (c) proceedings have been brought in relation to a matter that gave rise to the decision to serve the notice. (3) If a holder of an authority has applied under section 110(4) for review of the decision to serve or vary a notice at the time the Minister applies for an injunction under subsection (1) in relation to that notice— (a) the Tribunal must make an order staying the review proceeding pending the determination of the Minister's application; and (b) the Tribunal must dismiss the proceeding if the Supreme Court grants an injunction on the Minister's application. (4) If a holder of an authority has not applied under section 110(4) for review of the decision to serve or vary a notice at the time the Minister applies for an injunction under subsection (1) in relation to that notice, the holder cannot apply for review under section 110(4) in relation to that notice— (a) while the Minister's application is pending; or (b) if the Supreme Court grants an injunction on the Minister's application. S. 110AB inserted by No. 84/2012 s. 7. 110AB Minister may take action required by injunction or order (1) The Minister may take any action that an order under section 110(3A) or an injunction granted on an application under section 110AA(1) requires to be taken if— (a) the holder of the authority does not take the action within the time specified in the order or injunction or, if no time is specified in the order or injunction, a reasonable time; and (b) failure to take the action is likely to result in a serious risk to public safety, the environment, land, property or infrastructure. (2) The Minister may authorise a person and any person assisting that person to enter any land and do anything that in the Minister's opinion is necessary for the purpose of taking an action under subsection (1). (3) If it is necessary for an authorised person or a person assisting an authorised person to enter land under subsection (2), the Minister must, except in a case of emergency— (a) if the land is private land, give reasonable notice of the entry to the owner and the occupier of the land; and (b) if the land is Crown land, give reasonable notice of the entry to the Crown land Minister; and (c) ensure that the person enters the land at a reasonable time; and (d) if the land is used only for residential purposes, obtain, or take all reasonable steps to obtain, the consent of the occupier of the land. S. 110AC inserted by No. 84/2012 s. 7. 110AC Offence to hinder or obstruct remedial action (1) A person must not, without reasonable excuse, hinder or obstruct the Minister, an authorised person or a person assisting an authorised person taking action under section 110AB. Penalty: In the case of a corporation, 300 penalty units. (2) In this section, ***authorised person*** means a person authorised by the Minister under section 110AB(2). S. 110AD inserted by No. 84/2012 s. 7. 110AD Immunity for remedial action (1) An authorised person or a person assisting an authorised person is not personally liable for anything done or omitted to be done in good faith— (a) in the course of taking action under section 110AB; or (b) in the reasonable belief that the act or omission was in the course of taking action under section 110AB. (3) In this section, ***authorised person*** has the same meaning as in section 110AC. S. 110AE inserted by No. 84/2012 s. 7. 110AE Compensation for remedial action (1) Subject to subsection (2), compensation is payable by the Minister to the owner or occupier of private land for any loss or damage sustained as a direct, natural and reasonable consequence of an action taken under section 110AB, including— (a) deprivation of possession of the whole or any part of the surface of the land; and (b) damage to the surface of the land; and (c) damage to any improvements on the land; and (d) severance of the land from other land of the owner or occupier; and (e) loss of amenity, including recreation and conservation values; and (f) loss of opportunity to make any planned improvement on the land; and (g) any decrease in the market value of the owner or occupier's interest in the land. (2) Subsection (1) does not apply if the owner or occupier of the land is the holder of the authority subject to the order or injunction in relation to which the action under section 110AB was taken. (3) An owner or occupier of land may— (a) apply to the Tribunal for determination of a disputed claim for compensation under subsection (1); or (b) refer a disputed claim for compensation under subsection (1) to the Supreme Court for determination— in accordance with Part 10 of the **Land Acquisition and Compensation Act 1986** as if it were a claim for compensation under that Act and the Minister were the Authority referred to in that Part. (4) In its application to a claim referred under subsection (3), Part 10 of the **Land Acquisition and Compensation Act 1986** has effect as if— (a) it required the Tribunal or the Court (as the case requires) in determining the compensation payable to have regard to the provisions of this Part; and (b) section 91(1) of that Act provided that the Minister must pay the Minister's own costs and the costs of the owner or occupier unless the owner or occupier has been frivolous or vexatious or has otherwise acted unreasonably, in which case the Tribunal or the Court (as the case requires) may, subject to that section, award such costs as it thinks proper. S. 110AF inserted by No. 84/2012 s. 7. 110AF When claim for compensation for remedial action can be made (1) A claim for compensation for any loss or damage may be made under section 110AE at any time until the end of the period of 2 years after the day on which the Minister, an authorised person or a person assisting an authorised person finishes taking the action under section 110AB. (2) In this section, ***authorised person*** has the same meaning as in section 110AC. S. 110AG inserted by No. 84/2012 s. 7. 110AG Recovery of costs and compensation by Minister The Minister may recover, as a debt due to the Crown, in a court of competent jurisdiction— (a) the value of any reasonable costs incurred in taking an action under section 110AB; (b) any compensation paid under section 110AE in respect of that action— from the holder of the authority who was subject to the order under section 110(3A) or injunction under section 110AA in relation to which the action was taken. S. 110A inserted by No. 63/2006 s. 52.