Part 1 Preliminary

1 Short title

This Act may be cited as the Environmental Management and Pollution Control Act 1994 .

2 Commencement

The provisions of this Act commence on a day or days to be proclaimed.

3 Interpretation

(1)  In this Act, unless the contrary intention appears –

[Section 3 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] Agency has the same meaning as in the State Service Act 2000 ;

air includes any layer of the atmosphere;

[Section 3 Subsection (1) amended by No. 18 of 2021, s. 83, Applied:05 Nov 2021] Appeal Tribunal means the Tasmanian Civil and Administrative Tribunal;

article includes a system;

[Section 3 Subsection (1) amended by No. 75 of 2007, s. 4, Applied:01 Jul 2008] Authority means the Environment Protection Authority established under section 12 ;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] [Section 3 Subsection (1) amended by No. 45 of 2007, s. 4, Applied:29 Nov 2007]

authorized officer means an authorized officer under section 20 ;

best practice environmental management, in relation to an activity, means the management described in section 4 ;

[Section 3 Subsection (1) amended by No. 75 of 2007, s. 4, Applied:01 Jul 2008]

[Section 3 Subsection (1) amended by No. 75 of 2007, s. 4, Applied:01 Jul 2008] Board means the Board of the Environment Protection Authority established under section 13 ;

business includes a business not carried on for profit or gain or any activity undertaken by government or a public authority;

[Section 3 Subsection (1) amended by No. 45 of 2007, s. 4, Applied:29 Nov 2007] [Section 3 Subsection (1) amended by No. 6 of 2022, Sched. 3, Applied:29 Mar 2022]

[Section 3 Subsection (1) amended by No. 6 of 2022, Sched. 3, Applied:29 Mar 2022] clean fill type 1 means a mixture –

(a) containing natural materials, such as soil, rock, crushed rock, gravel, clay or sand, that are in a raw, unaltered form and that have been excavated from an area of land; and

(b) that does not contain –

(i) an amount, of a pollutant, or pollutants, that is above a level, of the pollutant or pollutants, declared under subsection (3)(a) ; and

(ii) a proportion, of a substance, or substances, that are not within paragraph (a) , that is greater than the proportion of the substance, or substances, declared under subsection (3)(b) ; and

(iii) pieces of material that are of dimensions greater than the dimensions declared under subsection (3)(c) ;

[Section 3 Subsection (1) amended by No. 6 of 2022, Sched. 3, Applied:29 Mar 2022] clean fill type 2 means a mixture –

(a) containing any one or more of the following:

(i) bricks, masonry or paving blocks;

(ii) concrete or mortar;

(iii) bituminised or rubble pavement; and

(b) that does not contain –

(i) an amount, of a pollutant, or pollutants, that is above a level, of the pollutant, or pollutants, declared under subsection (3)(a) ; and

(ii) a proportion, of a substance, or substances, that are not within paragraph (a) , that is greater than the proportion of the substance, or substances, declared under subsection (3)(b) ; and

(iii) pieces of material that are of dimensions greater than the dimensions declared under subsection (3)(c) ;

coastal waters of the State means any part of the sea that is from time to time included in the coastal waters of the State by virtue of the Coastal Waters (State Powers) Act 1980 of the Commonwealth;

[Section 3 Subsection (1) amended by No. 38 of 2015, s. 28, Applied:13 Oct 2015] Commissioner means the Commissioner of Police appointed under the Police Service Act 2003 ;

condition includes a limitation;

[Section 3 Subsection (1) amended by No. 46 of 2007, s. 4, Applied:29 Nov 2007] contaminated site has the meaning given by section 74A ;

contravene includes fail to comply with;

[Section 3 Subsection (1) amended by No. 45 of 2007, s. 4, Applied:29 Nov 2007] [Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] [Section 3 Subsection (1) amended by No. 45 of 2007, s. 4, Applied:29 Nov 2007] [Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] [Section 3 Subsection (1) amended by No. 45 of 2007, s. 4, Applied:29 Nov 2007]

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] controlled waste means –

(a) a substance that is controlled waste within the meaning of –

(i) the National Environment Protection Measure entitled the Movement of Controlled Waste Between States and Territories made by the National Environment Protection Council on 26 June 1998, as amended from time to time; or

(ii) any National Environment Protection Measure substituted for the Measure referred to in paragraph (a) , as amended from time to time; and

(b) a substance that is prescribed by the regulations to be controlled waste;

council has the same meaning as in the Local Government Act 1993 ;

council officer means an employee of a council appointed under section 21 ;

[Section 3 Subsection (1) amended by No. 75 of 2007, s. 4, Applied:01 Jul 2008]

[Section 3 Subsection (1) amended by No. 75 of 2007, s. 4, Applied:01 Jul 2008] Director means the Director, Environment Protection Authority appointed under section 18 ;

director, in relation to a body corporate, includes –

(a) a person occupying or acting in the position of a director or member of the governing body of the body corporate, by whatever name called and whether or not validly appointed to occupy or duly authorized to act in the position; and

(b) any person in accordance with whose directions or instructions the directors or members of the governing body are accustomed to act;

[Section 3 Subsection (1) amended by No. 46 of 2017, s. 4, Applied:04 Dec 2017] [Section 3 Subsection (1) amended by No. 6 of 2022, Sched. 3, Applied:29 Mar 2022] EL activity means an activity that is a level 2 activity by virtue of paragraph (h) of clause 4 of Schedule 2 and any development for the purposes of enabling such an activity to be carried out;

emergency authorization means an authorization referred to in section 34 ;

environment means components of the earth, including –

(a) land, air and water; and

(b) any organic matter and inorganic matter and any living organism; and

(c) human-made or modified structures and areas –

and includes interacting natural ecosystems that include components referred to in paragraph (a) or (b) ;

environment protection notice means an environment protection notice issued under Division 2 of Part 4 ;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] environment protection policy means an environment protection policy made and in force under Division 1A of Part 7 ;

environmental agreement means an environmental agreement entered into under section 28 ;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000]

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] environmental audit has the meaning given by section 5B ;

environmental harm means environmental harm as described in section 5 ;

Environmental Impact Assessment Principles means the principles set out in section 74 ;

environmental improvement programme means a programme referred to in section 37 ;

environmental infringement notice means a notice referred to in section 67 ;

[Section 3 Subsection (1) amended by No. 46 of 2017, s. 4, Applied:04 Dec 2017] environmental licence means an environmental licence granted under Division 8 of Part 3 ;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000]

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] environmental nuisance means –

(a) [Section 3 Subsection (1) amended by No. 45 of 2012, s. 4, Applied:06 Dec 2012] the emission, discharge, depositing or disturbance of a pollutant that unreasonably interferes with, or is likely to unreasonably interfere with, a person's enjoyment of the environment; and

(b) [Section 3 Subsection (1) amended by No. 45 of 2012, s. 4, Applied:06 Dec 2012] any emission, discharge, depositing or disturbance specified in an environment protection policy to be an environmental nuisance;

[Section 3 Subsection (1) amended by No. 42 of 2022, s. 4, Applied:14 Dec 2022] environmental standards means environmental standards, as amended from time to time, that are made under section 96Q(1) and that are in effect;

[Section 3 Subsection (1) amended by No. 42 of 2022, s. 4, Applied:14 Dec 2022] environmental standards condition means a provision, of any environmental standards, that is a provision of the kind referred to in section 96O(4)(d) ;

[Section 3 Subsection (1) amended by No. 42 of 2022, s. 4, Applied:14 Dec 2022] environmental standards offence provision means a provision, of any environmental standards, that is a provision of the kind referred to in section 96O(4)(c) ;

[Section 3 Subsection (1) amended by No. 45 of 2007, s. 4, Applied:29 Nov 2007] environmentally relevant activity means an existing or proposed activity which may cause environmental harm, and includes a level 1, level 2 or level 3 activity and an environmental nuisance;

financial assurance means a financial assurance referred to in section 35 ;

[Section 3 Subsection (1) amended by No. 46 of 2017, s. 4, Applied:04 Dec 2017] finfish means fish of the class Osteichthyes, other than fish of the order Anguilliformes;

[Section 3 Subsection (1) amended by No. 46 of 2017, s. 4, Applied:04 Dec 2017] finfish farming – see section 5C ;

[Section 3 Subsection (1) amended by No. 46 of 2017, s. 4, Applied:04 Dec 2017] fish farm has the same meaning as in the Inland Fisheries Act 1995 ;

[Section 3 Subsection (1) amended by No. 46 of 2017, s. 4, Applied:04 Dec 2017] fish farm licence means a fish farm licence that is in force under the Inland Fisheries Act 1995 ;

Fund means the Environment Protection Fund established under section 97 ;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] [Section 3 Subsection (1) amended by No. 45 of 2007, s. 4, Applied:29 Nov 2007]

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] general environmental duty means the duty of care described in section 23A(1) ;

general manager means the general manager of a council;

[Section 3 Subsection (1) amended by No. 46 of 2017, s. 4, Applied:04 Dec 2017] inland fish farming means an activity, in relation to finfish farming, that is an activity –

(a) that comprises fish farming, within the meaning of the Inland Fisheries Act 1995 ; or

(b) to which section 64(1)(c) of the Living Marine Resources Management Act 1995 relates;

[Section 3 Subsection (1) amended by No. 46 of 2007, s. 4, Applied:29 Nov 2007] investigation notice has the meaning given by section 74A ;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] [Section 3 Subsection (1) amended by No. 45 of 2007, s. 4, Applied:29 Nov 2007] [Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] [Section 3 Subsection (1) amended by No. 45 of 2007, s. 4, Applied:29 Nov 2007]

level 1 activity means an activity which may cause environmental harm and in respect of which a permit under the Land Use Planning and Approvals Act 1993 is required but does not include a level 2 activity or a level 3 activity;

[Section 3 Subsection (1) amended by No. 6 of 2022, Sched. 3, Applied:29 Mar 2022] level 2 activity means an activity specified in Schedule 2 and any development for the purposes of enabling such an activity to be carried out;

[Section 3 Subsection (1) amended by No. 6 of 2022, Sched. 3, Applied:29 Mar 2022] level 3 activity means an activity which is a project of State significance under the State Policies and Projects Act 1993 and any development for the purposes of enabling such an activity to be carried out;

[Section 3 Subsection (1) amended by No. 46 of 2017, s. 4, Applied:04 Dec 2017] marine farming has the same meaning as in the Living Marine Resources Management Act 1995 ;

[Section 3 Subsection (1) amended by No. 46 of 2017, s. 4, Applied:04 Dec 2017] marine farming licence means a marine farming licence that is in force under the Living Marine Resources Management Act 1995 ;

noise includes vibration;

occupier, in relation to –

(a) a place in respect of which different parts are occupied by different persons, means the respective persons occupying each part and includes a licensee and the holder of any right at law to use or carry on operations at that place but does not include a mortgagee who has not assumed active management of that place; and

(b) any other place, includes a licensee and the holder of any right at law to use or carry on operations at that place but does not include a mortgagee who has not assumed active management of that place;

officer, in relation to a body corporate, means –

(a) a director of the body corporate; or

(b) the chief executive officer of the body corporate; or

(c) a receiver or manager of any property of the body corporate or a liquidator of the body corporate –

and includes, in relation to a contravention or alleged contravention of this Act by the body corporate, an employee of the body corporate with responsibilities in respect of the matters to which the contravention or alleged contravention relates;

owner means any one or more of the following:

(a) in the case of a fee simple estate in land, the person in whom that estate is vested;

(b) in the case of land not registered under the Land Titles Act 1980 and subject to a mortgage, the person having, for the time being, the equity of redemption in that mortgage;

(c) in the case of land held under a tenancy for life, the person who is the life tenant;

(d) in the case of land held under a lease for a term of not less than 99 years or for a term of not less than such other prescribed period, the person who is the lessee of the land;

(e) in the case of land in respect of which a person has a prescribed interest, that person;

(f) if the land is unalienated from the Crown, the Crown;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] Panel means the Environment Protection Policy Review Panel established by section 96A(1) ;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] person includes any body of persons, corporate or unincorporate;

person in charge, in relation to a vehicle, does not include a lessor, mortgagee or financial institution that has not assumed active use of that vehicle;

[Section 3 Subsection (1) amended by No. 45 of 2007, s. 4, Applied:29 Nov 2007] place includes residential premises as defined in section 53(6) ;

pollutant includes –

(a) a gas, liquid or solid; or

(b) an odour; or

(c) an organism (whether alive or dead), including a virus; or

(d) energy, including noise, radioactivity and electromagnetic radiation; or

(e) a combination of pollutants –

that may cause environmental harm;

pollute means –

(a) discharge, emit, deposit or disturb pollutants; or

(b) cause or fail to prevent the discharge, emission, depositing, disturbance or escape of pollutants;

public authority means –

(a) any council; or

(b) any body corporate established under an enactment having jurisdiction limited to a district, locality or part of the State; or

(c) any body corporate established under an enactment or in the exercise or prerogative rights of the Crown to administer or control any department, business, undertaking or public institution on behalf of the State;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] reasonable costs and expenses means any reasonable costs and expenses assessed in accordance with section 5A ;

[Section 3 Subsection (1) amended by No. 45 of 2007, s. 4, Applied:29 Nov 2007]

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] regulations means regulations made and in force under this Act;

[Section 3 Subsection (1) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] related body corporate has the same meaning as in the Corporations Act;

[Section 3 Subsection (1) amended by No. 46 of 2007, s. 4, Applied:29 Nov 2007] remediation notice has the meaning given by section 74A ;

repealed Act means the Environment Protection Act 1973 ;

sell includes –

(a) offer or display for sale; and

(b) keep or have in possession for sale; and

(c) barter or exchange; and

(d) agree to sell; and

(e) send, forward or deliver for sale; and

(f) supply on a gratuitous basis for commercial promotional purposes; and

(g) authorize, direct, permit, cause or attempt any act referred to in paragraph (a) , (b) , (c) , (d) , (e) or (f) ;

[Section 3 Subsection (1) amended by No. 46 of 2007, s. 4, Applied:29 Nov 2007] site management notice has the meaning given by section 74A ;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] State Policy has the same meaning as in the State Policies and Projects Act 1993 ;

[Section 3 Subsection (1) amended by No. 46 of 2017, s. 4, Applied:04 Dec 2017] State waters means –

(a) the waters of the territorial sea adjacent to the State that are within 3 nautical miles of the seaward side of the baseline of the territorial sea, by reference to which the territorial limits of Australia are defined for the purposes of international law; and

(b) the sea on the landward side of that baseline of the territorial sea adjacent to the State that is not within the limits of the State; and

(c) waters within the limits of the State;

[Section 3 Subsection (1) amended by No. 42 of 2022, s. 4, Applied:14 Dec 2022] technical standard means a technical standard, as amended from time to time, that is made under section 96Y(1) and that is in effect;

[Section 3 Subsection (1) amended by No. 45 of 2012, s. 4, Applied:06 Dec 2012] threatened species means a taxon of flora or fauna listed in Schedule 3 , 4 or 5 to the Threatened Species Protection Act 1995 ;

vehicle includes any vessel or aircraft;

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000]

[Section 3 Subsection (1) amended by No. 56 of 2000, s. 4, Applied:14 Jul 2000] waste means any –

(a) discarded, rejected, unwanted, surplus or abandoned matter, whether of any value or not; or

(b) discarded, rejected, unwanted, surplus or abandoned matter, whether of any value or not, intended –

(i) for recycling, reprocessing, recovery, reuse or purification by a separate operation from that which produced the matter; or

(ii) for sale;

water includes water underground but does not include water in any tank, pipe or cistern in use or destined for use;

[Section 3 Subsection (1) amended by No. 45 of 2007, s. 4, Applied:29 Nov 2007] [Section 3 Subsection (1) amended by No. 6 of 2008, Sched. 1, Applied:28 Apr 2008] waters within the limits of the State means all tidal waters adjacent to the State other than waters in respect of which a permit may be required under sections 10A, 10B, 10C or 10D of the Environment Protection (Sea Dumping) Act 1981 of the Commonwealth.

[Section 3 Subsection (1) amended by No. 6 of 2008, Sched. 1, Applied:28 Apr 2008]

(2)  Words and expressions used both in this Act and in the Land Use Planning and Approvals Act 1993 have in this Act, unless the contrary intention appears, the same respective meanings as they have in that Act.

(3)  [Section 3 Subsection (3) inserted by No. 6 of 2022, Sched. 3, Applied:29 Mar 2022] The Director may declare –

(a) a level of a pollutant, or pollutants, for the purposes of paragraph (b)(i) of the definition of clean fill type 1 in subsection (1) or paragraph (b)(i) of the definition of clean fill type 2 in subsection (1) , or both; and

(b) a proportion, of a substance, or substances, for the purposes of paragraph (b)(ii) of the definition of clean fill type 1 in subsection (1) or paragraph (b)(ii) of the definition of clean fill type 2 in subsection (1) , or both; and

(c) the dimensions of pieces of material for the purposes of paragraph (b)(iii) of the definition of clean fill type 1 in subsection (1) or paragraph (b)(iii) of the definition of clean fill type 2 in subsection (1) , or both.

(4)  [Section 3 Subsection (4) inserted by No. 6 of 2022, Sched. 3, Applied:29 Mar 2022] The Director is to ensure that a copy of a declaration under subsection (3) that is in force is published on a website of the Department.

4 Best practice environmental management

(1)  For the purposes of this Act, the best practice environmental management of an activity is the management of the activity to achieve an ongoing minimization of the activity's environmental harm through cost-effective measures assessed against the current international and national standards applicable to the activity.

(2)  In determining the best practice environmental management of an activity, regard must be had to the following measures:

(a) strategic planning by the person carrying out, or proposing to carry out, the activity;

(b) administrative systems implemented by the person, including staff training;

(c) public consultation carried out by the person;

(d) product and process design;

(e) waste prevention, treatment and disposal.

(3)  Subsection (2) does not limit the measures to which regard may be had in determining the best practice environmental management of an activity.

5 Environmental harm

(1)  For the purposes of this Act, environmental harm is any adverse effect on the environment (of whatever degree or duration) and includes an environmental nuisance.

(2)  For the purposes of this Act, the following provisions are to be applied in determining whether environmental harm is material environmental harm or serious environmental harm:

(a) environmental harm is to be treated as serious environmental harm if –

(i) it involves an actual adverse effect on the health or safety of human beings that is of a high impact or on a wide scale; or

(ii) it involves an actual adverse effect on the environment that is of a high impact or on a wide scale; or

(iii) it results in actual loss or property damage of an amount, or amounts in aggregate, exceeding ten times the threshold amount;

(b) environmental harm is to be treated as material environmental harm if –

(i) it consists of an environmental nuisance of a high impact or on a wide scale; or

(ii) it involves an actual adverse effect on the health or safety of human beings that is not negligible; or

(iii) it involves an actual adverse effect on the environment that is not negligible; or

(iv) it results in actual loss or property damage of an amount, or amounts in aggregate, exceeding the threshold amount.

(3)  For the purposes of subsection (2) , loss includes the reasonable costs and expenses that would be incurred in taking all reasonable and practicable measures to prevent or mitigate the environmental harm and to make good resulting environmental damage.

(4)  For the purposes of subsection (2) , threshold amount means $5 000, or if a greater amount is prescribed by regulation, that amount.

(5)  For the purposes of this Act, environmental harm is caused by pollution –

(a) whether the harm is a direct or indirect result of the pollution; and

(b) whether the harm results from the pollution alone or from the combined effects of the pollution and other factors.

5A Assessment of reasonable costs and expenses

[Section 5A Inserted by No. 56 of 2000, s. 5, Applied:14 Jul 2000] For the purposes of this Act, the reasonable costs and expenses that have been or would be incurred by the Director, a council or some other public authority or person in taking any action are to be assessed by reference to the reasonable costs and expenses that would have been or would be incurred in having the action taken by independent contractors engaged for that purpose.

5B Environmental audit

[Section 5B Inserted by No. 56 of 2000, s. 5, Applied:14 Jul 2000] An environmental audit is a documented, systematic, objective assessment of any one or more of the following:

(a) the ability of management systems to adequately manage waste and control pollution;

(b) the extent to which actions required to be taken, or outcomes required to be achieved, for waste management and pollution control have been taken or achieved;

(c) the extent, nature and source of wastes and emissions generated by an activity or process;

(d) the likelihood of waste management problems and pollution control problems occurring and the adequacy of safeguards in place to prevent their occurrence or limit their impact on the environment;

(e) the degree of compliance with –

(i) any conditions or restrictions applied by the Board to a permit issued under the Land Use Planning and Approvals Act 1993 ; or

(ii) any conditions imposed by an environment protection notice; or

(iii) any other requirement of this Act;

(f) [Section 5B Amended by No. 42 of 2022, s. 5, Applied:14 Dec 2022] any other matter specified by the Board for the purpose of determining compliance with the Act, a State Policy, an environment protection policy, an environmental standards condition, an environmental standards offense provision or a technical standard.

5C Finfish farming

[Section 5C Inserted by No. 46 of 2017, s. 5, Applied:04 Dec 2017]

(1)  For the purposes of this Act, finfish farming is the activity, in the relevant circumstances, of farming of finfish.

(2)  For the purposes of subsection (1) , the activity of farming of finfish is the activity that consists of, or includes, any one or more of the following activities:

(a) the farming, culturing, hatching, rearing, ranching, enhancement, or breeding, of finfish;

(b) any activities associated with, and for the purposes of, an activity referred to in paragraph (a) .

(3)  For the purposes of subsection (1) , the relevant circumstances in relation to the farming of finfish are that –

(a) the farming of finfish is an activity –

(i) to which section 64(1)(a) of the Living Marine Resources Management Act 1995 relates; or

(ii) in relation to which a permit under section 12 or 14 of the Living Marine Resources Management Act 1995 is in force; or

(b) the farming of finfish is conducted on a fish farm and the facilities or area of land, or area of State waters, on or at which the farming of finfish is conducted have the required production or containment characteristics; or

(c) the farming of finfish is an activity to which section 64(1)(c) of the Living Marine Resources Management Act 1995 relates and the facilities or area of land, or area of State waters, on or at which the farming of finfish is conducted have the required production or containment characteristics.

(4)  For the purposes of this section, facilities or an area of land, or an area of State waters, on or at which the farming of finfish is conducted have the required production or containment characteristics if the facilities, area of land, or area of State waters –

(a) have, or are intended to have, the capacity to produce, in a year, 5 tonnes or more of finfish; or

(b) contain, or are intended to contain, in a year, finfish with a biomass of 2 tonnes or more.

(5)  For the purposes of this Act, an activity may constitute finfish farming whether it occurs –

(a) on land; or

(b) on inland waters within the meaning of the Inland Fisheries Act 1995 ; or

(c) in State waters.

6 Responsibility for pollution

For the purposes of this Act, the occupier or person in charge of a place or vehicle at or from which a pollutant escapes or is discharged, emitted or deposited is taken to have polluted the environment with the pollutant (but without affecting the liability of any other person in respect of the escape, discharge, emission or depositing of the pollutant).

7 Act binds Crown

This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.

8 Objectives to be furthered

It is the obligation of any person on whom a function is imposed or a power is conferred under this Act to perform the function or to exercise the power in such a manner as to further the objectives set out in Schedule 1 .

9 Interaction with other Acts

(1)  This Act does not derogate from the provisions of any other Act.

(2)  [Section 9 Subsection (2) amended by No. 45 of 2007, s. 5, Applied:29 Nov 2007] [Section 9 Subsection (2) omitted by No. 45 of 2012, s. 5, Applied:06 Dec 2012] .  .  .  .  .  .  .  .

10 Civil remedies not affected

The provisions of this Act do not limit or derogate from any civil right or remedy and compliance with this Act does not necessarily indicate that a common law duty of care has been satisfied.

11 Amendment of Schedule 2

(1)  The Governor may, by order, amend Schedule 2 –

(a) by omitting any activity specified in the Schedule; or

(b) subject to subsection (4) , by inserting any activity in the Schedule.

(2)  The Governor may, by order, repeal Schedule 2 and substitute another Schedule specifying activities.

(3)  Section 47 (3) , (3A) , (4) , (5) , (6) and (7) of the Acts Interpretation Act 1931 applies to an order made under this section as if it were a regulation.

(4)  An activity may be inserted in Schedule 2 , or may be included in another Schedule specifying environmentally relevant activities, only if the Governor is of the opinion that –

(a) a pollutant will or may be released into the environment when the activity is carried out; and

(b) the release of the pollutant will or may cause environmental harm.

Part 2 Administration

Division 1 Administrative bodies

12 Establishment of Environment Protection Authority

[Section 12 Substituted by No. 75 of 2007, s. 5, Applied:01 Jul 2008]

(1)  The Environment Protection Authority is established.

(2)  The Authority consists of the Board of the Environment Protection Authority and the Director.

(3)  The Authority is part of the State's resource management and planning system, the objectives of which are set out in Schedule 1 .

13 Board of Environment Protection Authority

[Section 13 Subsection (1) amended by No. 56 of 2000, s. 6, Applied:14 Jul 2000] [Section 13 Substituted by No. 75 of 2007, s. 5, Applied:01 Jul 2008] The Board of the Environment Protection Authority is established.

13A Membership of Board

[Section 13A Inserted by No. 75 of 2007, s. 5, Applied:01 Jul 2008]

(1)  The Board consists of –

(a) the chairperson, being a person who has expertise or experience in public administration and environmental or natural resource management; and

(b) the Director; and

(c) a person with practical knowledge of, and experience in, environmental management in industry, commerce or economic development; and

(d) a person with practical knowledge of, and experience in, environmental management and expertise in one or more of the following:

(i) environmental conservation;

(ii) natural resource management;

(iii) air, noise or water pollution;

(iv) management and prevention of waste;

(v) environmental health;

(vi) social and economic analysis; and

(e) a person with practical knowledge of, and experience in, environmental management in local government.

(2)  The Board is to include at least one person of each sex.

(3)  The members of the Board referred to in subsection (1)(a) , (c) , (d) and (e) are to be appointed by the Governor.

(4)  A State Service officer or State Service employee is not entitled to be appointed as a member of the Board under subsection (3) .

(5)  The Governor may appoint a member referred to in subsection (1)(c) , (d) or (e) as the deputy chairperson of the Board.

(6)  Schedules 3 and 4 have effect with respect to the membership and meetings of the Board.

14 Functions and powers of Board

(1)  The functions of the Board are to administer and enforce the provisions of this Act, and in particular, to use its best endeavours –

(a) [Section 14 Subsection (1) amended by No. 75 of 2007, s. 6, Applied:01 Jul 2008] .  .  .  .  .  .  .  .  

(b) to further the objectives of this Act; and

(c) [Section 14 Subsection (1) amended by No. 56 of 2000, s. 7, Applied:14 Jul 2000] to ensure the prevention or control of any act or omission which causes or is capable of causing pollution; and

(d) [Section 14 Subsection (1) amended by No. 75 of 2007, s. 6, Applied:01 Jul 2008] to advise the Minister, on the request of the Minister or at the discretion of the Board, on any matter that may significantly affect the achievement of the objectives of this Act; and

(e) to ensure that valuation, pricing and incentive mechanisms are considered in policy making and programme implementation in environmental issues.

(2)  The Board must perform such other functions as are conferred on it by or under this Act or any other Act.

(3)  The Board may do all things necessary or convenient to be done for or in connection with, or incidental to, the performance of its functions.

15 Ministerial statement of expectation

[Section 15 Substituted by No. 75 of 2007, s. 7, Applied:01 Jul 2008]

(1)  [Section 15 Subsection (1) amended by No. 42 of 2022, s. 6, Applied:14 Dec 2022] The Minister must provide the Board with a ministerial statement of expectation.

(2)  The Minister may at any time, at his or her discretion or on receipt of an application by the Board –

(a) amend the ministerial statement of expectation; or

(b) revoke the ministerial statement of expectation and substitute another ministerial statement of expectation –

by providing the amendment or substituted ministerial statement of expectation to the Board.

(2A)  [Section 15 Subsection (2A) inserted by No. 42 of 2022, s. 6, Applied:14 Dec 2022] The Minister must review a ministerial statement of expectation as soon as reasonably practicable after the end of the 5-year period after it was provided to the Board under subsection (1) , if the ministerial statement of expectation has not been reviewed, amended, or substituted, at any time within that period.

(2B)  [Section 15 Subsection (2B) inserted by No. 42 of 2022, s. 6, Applied:14 Dec 2022] The Minister may review a ministerial statement of expectation at any time.

(3)  In preparing the ministerial statement of expectation, the Minister must consult with the Board.

(4)  The ministerial statement of expectation and any amendment to the ministerial statement of expectation is to be in writing and signed by the Minister.

(5)  [Section 15 Subsection (5) amended by No. 42 of 2022, s. 6, Applied:14 Dec 2022] The ministerial statement of expectation or an amendment to the ministerial statement of expectation takes effect on a day specified in it, being a day not earlier than the day on which it is provided to the Board under this section.

(6)  The Board is to make the ministerial statement of expectation available to the public in the manner determined by the Board.

15A Contents of ministerial statement of expectation

[Section 15A Inserted by No. 75 of 2007, s. 7, Applied:01 Jul 2008]

(1)  The ministerial statement of expectation is to specify the objectives of the Minister on any matter relating to the functions of the Board.

(2)  The ministerial statement of expectation –

(aa) [Section 15A Subsection (2) amended by No. 42 of 2022, s. 7, Applied:14 Dec 2022] must further the objectives specified in Schedule 1 ; and

(aab) [Section 15A Subsection (2) amended by No. 42 of 2022, s. 7, Applied:14 Dec 2022] must specify which of, and the manner in which, the objectives specified in Schedule 1 are being furthered by the ministerial statement of expectation; and

(aac) [Section 15A Subsection (2) amended by No. 42 of 2022, s. 7, Applied:14 Dec 2022] must be consistent with the functions and powers of the Board; and

(a) may not prevent the Board from performing a function it is required to perform or otherwise complying with any Act; and

(b) may not extend the functions and powers of the Board.

15B Statement of intent

[Section 15B Inserted by No. 75 of 2007, s. 7, Applied:01 Jul 2008]

(1)  Within 3 months after receiving the ministerial statement of expectation or any amendment to the ministerial statement of expectation, the Board must provide to the Minister a statement of intent.

(2)  A statement of intent is to –

(a) specify the objectives of the Board for the period covered by the statement of intent; and

(b) address matters raised in the ministerial statement of expectation; and

(c) state the nature and scope of the activities to be carried out by the Board during the period covered by the statement of intent; and

(d) specify the performance criteria and other measures by which the performance of the Board is to be assessed against the objectives of the Board for the period covered by the statement of intent.

(3)  The statement of intent may contain any other matter the Board considers appropriate.

(4)  The Board may at any time at its own discretion or on the request of the Minister –

(a) amend the statement of intent; or

(b) revoke the statement of intent and substitute another statement of intent.

(5)  The statement of intent and any amendment to the statement of intent is to be in writing and signed by the chairperson of the Board.

(6)  The statement of intent or any amendment to the statement of intent takes effect on the day on which it is approved by the Minister or on a later day specified by the Minister.

(7)  The Board is to make the statement of intent available to the public in the manner determined by the Board.

15C Conduct to be consistent with ministerial statement of expectation and statement of intent

[Section 15C Inserted by No. 75 of 2007, s. 7, Applied:01 Jul 2008] The Board is to conduct its business and affairs in a manner that is consistent with the ministerial statement of expectation and the statement of intent.

16 Delegation

(1)  The Board may, by resolution, delegate any of its functions or powers other than this power of delegation.

(2)  The Director may delegate any of the Director's functions or powers other than this power of delegation.

(3)  If any services are provided by a delegate employed in any Agency or State authority, any fee payable in respect of those services is payable to the Agency or State authority in which that person is employed.

(4)  [Section 16 Subsection (4) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] For the purposes of subsection (3) , State authority has the same meaning as in the State Service Act 2000 .

17 Committees

The Board may establish committees, which may include persons who are not members of the Board, for the purpose of advising it on any matter arising in relation to the performance of its functions.

18 Director, Environment Protection Authority

[Section 18 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 18 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 18 Substituted by No. 75 of 2007, s. 8, Applied:01 Jul 2008]

(1)  The Governor may appoint a State Service officer or State Service employee to be Director, Environment Protection Authority and that person holds office in conjunction with State Service employment.

(2)  The Director has the functions and powers specified in this Act or any other Act.

18A Independence of Director

[Section 18A Inserted by No. 42 of 2022, s. 8, Applied:14 Dec 2022]

(1)  The Director is authorised and required to act independently in relation to the performance and exercise of the functions and powers of the Director and, subject to this Act and any other Act, has complete discretion in the performance and exercise of those functions and powers.

(2)  In particular, the Director is not subject to direction from anyone in relation to a decision of the Director –

(a) to grant, renew or vary, or not to grant, renew or vary, an environmental licence, or to transfer, or refuse to transfer, an environmental licence; or

(b) to suspend or cancel, or not to suspend or cancel, an environmental licence; or

(c) to impose, or not to impose, a condition or requirement on an environmental licence; or

(d) to issue, amend or revoke, or not to issue, amend or revoke, an environment protection notice, an investigation notice, a remediation notice, a site management notice or a technical standard; or

(e) to investigate or prosecute, or not to investigate or prosecute, a person; or

(f) to issue, or not to issue, a report or recommendation; or

(g) as to the contents of any report or recommendation issued by the Director; or

(h) to issue, or not to issue, a requirement, authorization or direction, or to enter into, or not to enter into, an agreement.

19 Staff

(1)  [Section 19 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] Subject to and in accordance with the State Service Act 2000 , persons may be appointed or employed for the purposes of this Act.

(2)  [Section 19 Subsection (2) amended by No. 42 of 2022, s. 9, Applied:14 Dec 2022] [Section 19 Subsection (2) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 19 Subsection (2) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The Director may make arrangements with the Head of a State Service Agency for State Service officers and State Service employees employed in that Agency to be made available to perform duties and functions under this Act, and those officers and employees may hold office in conjunction with State Service employment.

20 Authorized officers

(1)  The Director is an authorized officer for the purposes of this Act.

(2)  [Section 20 Subsection (2) amended by No. 75 of 2007, s. 9, Applied:01 Jul 2008] [Section 20 Subsection (2) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The Director may–

(a) [Section 20 Subsection (2) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] appoint State Service officers and State Service employees appointed or employed in the Department; and

(b) [Section 20 Subsection (2) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] appoint State Service officers and State Service employees appointed or employed in another Agency, with the consent of the Head of that Agency–

as authorized officers for the purposes of this Act, and those persons may exercise the powers and perform the functions of an authorized officer in conjunction with State Service employment.

(3)  [Section 20 Subsection (3) substituted by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004] A police officer is an authorized officer.

(4)  [Section 20 Subsection (4) amended by No. 75 of 2007, s. 9, Applied:01 Jul 2008] The Director may, with the consent of any person, appoint that person or an employee of that person as an authorized officer.

(5)  [Section 20 Subsection (5) amended by No. 75 of 2007, s. 9, Applied:01 Jul 2008] A person appointed as an authorized officer is to be appointed on such terms and conditions as the Director determines.

20A Duty of council to prevent or control pollution

[Section 20A Inserted by No. 56 of 2000, s. 8, Applied:14 Jul 2000]

(1)  In this section,

prescribed activity means –

(a) an activity that is a level 2 activity; and

(b) an activity that is a level 3 activity in respect of which the council has not, by an order under section 26 of the State Policies and Projects Act 1993 , been made responsible for the enforcement of conditions upon which the activity may proceed.

(2)  In relation to activities other than prescribed activities, a council must use its best endeavours to prevent or control acts or omissions which cause or are capable of causing pollution.

20B Council may ask Board to exercise powers

[Section 20B Inserted by No. 45 of 2007, s. 6, Applied:29 Nov 2007] A council may ask the Board, in respect of an activity that is not a level 2 activity or a level 3 activity, to exercise any of the Board's powers relating to the following:

(a) an environmental audit;

(b) an environmental improvement programme;

(c) an environmental agreement;

(d) lodgment of a financial assurance.

21 Council officers

A council may appoint an employee of the council to be a council officer for the purposes of this Act.

21A Annual report

[Section 21A Inserted by No. 75 of 2007, s. 10, Applied:01 Jul 2008]

(1)  The Board must prepare for the Authority an annual report for each financial year.

(2)  The annual report must contain a report on the activities and performance of the Board and the Director during the relevant financial year.

(3)  The Board must provide a copy of the annual report to the Minister so as to enable it to be tabled in accordance with subsection (4) .

(4)  On or before 31 October in each year, the Minister is to cause a copy of the annual report to be laid on the table of each House of Parliament.

(5)  If the Minister is unable to comply with subsection (4) because a House of Parliament is not sitting on 31 October in any year, the Minister must –

(a) on or before that day, provide copies of the annual report to the Clerk of that House; and

(b) on or before that day, make copies of the annual report available for purchase by the public; and

(c) within the first 7 sitting-days after that day, cause copies of the annual report to be laid before that House.

Division 2 Access to information

22 Registers of environmental management and enforcement instruments

(1)  Subject to section 23 , the Board must keep a register containing particulars of –

(aa) [Section 22 Subsection (1) amended by No. 46 of 2017, s. 6, Applied:04 Dec 2017] any licence document, in relation to an environmental licence, that is issued under section 42ZB ;

(a) any environmental agreement entered into or approved under section 28 ; and

(b) any environmental audit required by the Board under section 30 ; and

(c) any emergency authorization issued under section 34 ; and

(d) any financial assurance required under section 35 ; and

(e) any environmental improvement programme approved under section 40 , and any amendment or revocation of any such programme; and

(f) [Section 22 Subsection (1) amended by No. 45 of 2012, s. 6, Applied:06 Dec 2012] any environment protection notice issued under section 44 , and any amendment or revocation of any such notice; and

(g) [Section 22 Subsection (1) amended by No. 45 of 2012, s. 6, Applied:06 Dec 2012] any notice issued under Part 5A in respect of a contaminated site, and any amendment or revocation of any such notice.

(1A)  [Section 22 Subsection (1A) inserted by No. 56 of 2000, s. 9, Applied:14 Jul 2000] Subject to section 23 , a council must keep a register containing particulars of –

(a) any environment protection notice issued under section 44(2) by a council officer who is an employee of that council; and

(b) any amendment or revocation of any notice referred to in paragraph (a) .

(2)  [Section 22 Subsection (2) amended by No. 56 of 2000, s. 9, Applied:14 Jul 2000] A person is, on payment of the prescribed fee, entitled to search a register referred to in subsection (1) or (1A) .

23 Trade secrets

(1)  [Section 23 Subsection (1) substituted by No. 56 of 2000, s. 10, Applied:14 Jul 2000] If it appears to the Board or a council that –

(a) any information that could be kept as a trade secret would be available to the public; and

(b) the release of that information would be likely to cause financial loss to any person –

the Board or council must consult with that person before including the information on any register kept under this Act, and that person may, within 14 days, make representations to the Board or council.

(2)  [Section 23 Subsection (2) amended by No. 56 of 2000, s. 10, Applied:14 Jul 2000] After considering any representations made under subsection (1) , the Board or council must–

(a) determine whether the information is to be included in the register; and

(b) serve notice on any person who made representations of its decision.

(3)  [Section 23 Subsection (3) amended by No. 56 of 2000, s. 10, Applied:14 Jul 2000] A person who is served with a notice under subsection (2) (b) and who is aggrieved by a decision of the Board or a council to include information on a register may appeal to the Appeal Tribunal.

(4)  A person must not disclose any information relating to a trade secret used in any undertaking or equipment that has been obtained by the person in the administration of this Act or the repealed Act unless the disclosure is made –

(a) with the consent of the person carrying on the undertaking or operating the equipment; or

(b) for the purpose of any legal proceedings under this Act or the repealed Act .

Penalty:  Fine not exceeding 5 000 penalty units or imprisonment for a term not exceeding 2 years or both.

(5)  [Section 23 Subsection (5) inserted by No. 42 of 2022, s. 10, Applied:14 Dec 2022] This section does not apply in relation to any information that is, under section 23AA(2) , published, provided, or made available for viewing by members of the public or a person or body.

23AA Environmental monitoring information

[Section 23AA Inserted by No. 42 of 2022, s. 11, Applied:14 Dec 2022]

(1)  In this section –

council-owned company means a company, incorporated under the Corporations Act, that is controlled by one or more councils or another company that is so controlled;

public authority means –

(a) an Agency, within the meaning of the State Service Act 2000 ; and

(b) the University of Tasmania; and

(c) the Police Service; and

(d) a council; and

(e) a statutory authority; and

(f) a body, whether corporate or unincorporate, that is established by or under an Act for a public purpose; and

(g) a body whose members, or a majority of whose members, are appointed by the Governor or a Minister of the Crown; and

(h) a Government Business Enterprise, within the meaning of the Government Business Enterprises Act 1995 ; and

(i) a council-owned company; and

(j) a State-owned company;

relevant information means information that –

(a) results from, or relates to, monitoring of the environmental effects of an activity, including but not limited to any of the following:

(i) the results of any type of test or measurement of any emissions, discharge or deposition of a substance;

(ii) reports as to the condition of the environment at the place where the activity occurs or that is in the proximity of that place;

(iii) any interpretation, or analysis, of such results or reports;

(iv) any photographs, visual recordings, audio recordings or audio-visual recordings; and

(b) is required, under an environmental licence, environment protection notice, permit, environment protection policy or under environmental standards, to be collected; and

(c) is provided under this Act, or another prescribed Act, to the Board or the Director, otherwise than in accordance with a requirement imposed on a person under section 43 or section 92 ;

State-owned company means a company, incorporated under the Corporations Act, that is controlled by –

(a) the Crown; or

(b) a Government Business Enterprise; or

(c) a statutory authority; or

(d) another company that is so controlled.

(2)  The Director may –

(a) publish any relevant information; or

(b) provide relevant information to members of the public or a person or body; or

(c) make relevant information available for viewing by members of the public or a person or body –

in the manner and form that the Director thinks fit.

(3)  Subsection (2) applies in relation to relevant information whether or not the person or body that provided the information to the Director or the Board agrees to the information being dealt with in accordance with that subsection.

(4)  In determining whether to, under subsection (2) , publish, provide, or make available for viewing by members of the public or a person or body, any relevant information, the Director must consider whether the information is information related to the business affairs of a person, other than a public authority, which, if it were information of a public authority, would be exempt information within the meaning of the Right to Information Act 2009 .

Part 2A Environmental duties

23A General environmental duty

[Section 23A Inserted by No. 56 of 2000, s. 11, Applied:14 Jul 2000]

(1)  A person must take such steps as are practicable or reasonable to prevent or minimise environmental harm or environmental nuisance caused, or likely to be caused, by an activity conducted by that person.

(2)  In determining whether a person has complied with the general environmental duty, regard must be had to all the circumstances of the conduct of the activity, including but not limited to –

(a) [Section 23A Subsection (2) amended by No. 45 of 2007, s. 7, Applied:29 Nov 2007] the nature of the harm or nuisance or likely harm or nuisance; and

(b) the sensitivity of the environment into which a pollutant is discharged, emitted or deposited; and

(c) the current state of technical knowledge for the activity; and

(d) the likelihood and degree of success in preventing or minimising the harm or nuisance of each of the measures that might be taken; and

(e) the financial implications of taking each of those measures.

(3)  Failure to comply with subsection (1) does not itself constitute an offence or give rise to a civil right or remedy, but if a person has failed to comply with that subsection an environment protection notice may be issued to that person.

(4)  [Section 23A Subsection (4) amended by No. 45 of 2007, s. 7, Applied:29 Nov 2007] [Section 23A Subsection (4) amended by No. 45 of 2007, s. 7, Applied:29 Nov 2007] Where a person, in relation to an environmentally relevant activity, takes all measures specified, in a code of practice made and approved in accordance with the regulations, as meeting the requirements for compliance with the general environmental duty in respect of the activity, the person is taken to have complied with the general environmental duty in respect of the activity.

Part 3 Environmental Management

24 Assessment of permissible level 1 activities

(1)  [Section 24 Subsection (1) amended by No. 47 of 2015, s. 54, Applied:17 Dec 2015] [Section 24 Subsection (1) amended by No. 45 of 2007, s. 8, Applied:29 Nov 2007] [Section 24 Subsection (1) amended by No. 56 of 2002, s. 4, Applied:19 Dec 2002] [Section 24 Subsection (1) amended by No. 56 of 2000, s. 12, Applied:14 Jul 2000] [Section 24 Subsection (1) amended by No. 84 of 1997, s. 26, Applied:01 Jan 1998] Where an application has been made to a planning authority under the Land Use Planning and Approvals Act 1993 for a permit in respect of a use or development of land that is a permissible level 1 activity, the Director may, before a decision has been made by the planning authority in relation to that application –

(a) [Section 24 Subsection (1) amended by No. 47 of 2015, s. 54, Applied:17 Dec 2015] under section 43F , 57(6) or 58(2) of the Land Use Planning and Approvals Act 1993 as in force before the commencement of section 10 of the Land Use Planning and Approvals Amendment (Tasmanian Planning Scheme) Act 2015; or

(b) [Section 24 Subsection (1) amended by No. 47 of 2015, s. 54, Applied:17 Dec 2015] under section 40Y, 57(6) or 58(2) of the Land Use Planning and Approvals Act 1993 , as in force after the commencement of section 10 of the Land Use Planning and Approvals Amendment (Tasmanian Planning Scheme) Act 2015 –

[Section 24 Subsection (1) inserted by No. 47 of 2015, s. 54, Applied:17 Dec 2015] require the planning authority to refer the application to the Board, and the planning authority must comply with the requirement.

(1A)  [Section 24 Subsection (1A) inserted by No. 45 of 2007, s. 8, Applied:29 Nov 2007] A requirement by the Director under subsection (1) must be made –

(a) [Section 24 Subsection (1A) amended by No. 47 of 2015, s. 54, Applied:17 Dec 2015] in the case of an application under section 43A of the Land Use Planning and Approvals Act 1993 , as in force before the commencement of section 10 of the Land Use Planning and Approvals Amendment (Tasmanian Planning Scheme) Act 2015, within 28 days after the date of lodgment of the application; or

(ab) [Section 24 Subsection (1A) amended by No. 47 of 2015, s. 54, Applied:17 Dec 2015] in the case of an application under section 40T of the Land Use Planning and Approvals Act 1993 , as in force after the commencement of section 10 of the Land Use Planning and Approvals Amendment (Tasmanian Planning Scheme) Act 2015, within 28 days after the date of lodgment of the application; or

(b) in the case of an application under section 57(1) of that Act, before the expiry of the period allowed for representations under subsection (5) of that section; or

(c) in the case of an application under section 58 of that Act, within 14 days after the date of lodgment of the application.

(1B)  [Section 24 Subsection (1B) amended by No. 47 of 2015, s. 54, Applied:17 Dec 2015] [Section 24 Subsection (1B) inserted by No. 45 of 2007, s. 8, Applied:29 Nov 2007] Where an application under section 43A of the Land Use Planning and Approvals Act 1993 , as in force before the commencement of section 10 of the Land Use Planning and Approvals Amendment (Tasmanian Planning Scheme) Act 2015, is referred to the Board under subsection (1) , the Board must deal with the application in accordance with section 25A of this Act.

(1C)  [Section 24 Subsection (1C) inserted by No. 47 of 2015, s. 54, Applied:17 Dec 2015] Where an application under section 40T of the Land Use Planning and Approvals Act 1993 , as in force after the commencement of section 10 of the Land Use Planning and Approvals Amendment (Tasmanian Planning Scheme) Act 2015, is referred to the Board under subsection (1) , the Board must deal with the application in accordance with section 25A of this Act.

(2)  [Section 24 Subsection (2) amended by No. 56 of 2002, s. 4, Applied:19 Dec 2002] [Section 24 Subsection (2) amended by No. 56 of 2000, s. 12, Applied:14 Jul 2000] [Section 24 Subsection (2) amended by No. 84 of 1997, s. 26, Applied:01 Jan 1998] Where an application under section 57 or 58 of the Land Use Planning and Approvals Act 1993 is referred to the Board under subsection (1) , the planning authority must deal with the application in accordance with section 57 of that Act.

(3)  [Section 24 Subsection (3) amended by No. 45 of 2007, s. 8, Applied:29 Nov 2007] [Section 24 Subsection (3) amended by No. 45 of 2007, s. 8, Applied:29 Nov 2007] [Section 24 Subsection (3) amended by No. 56 of 2000, s. 12, Applied:14 Jul 2000] [Section 24 Subsection (3) amended by No. 56 of 2000, s. 12, Applied:14 Jul 2000] [Section 24 Subsection (3) substituted by No. 56 of 2002, s. 4, Applied:19 Dec 2002] Subsections (2) , (5) , (6) and (8) of section 25 apply to an application under section 57 or 58 of the Land Use Planning and Approvals Act 1993 as if it were an application in respect of a permissible level 2 activity that the Board has determined it needs to assess under this Act.

(3A)  [Section 24 Subsection (3A) amended by No. 56 of 2002, s. 4, Applied:19 Dec 2002] [Section 24 Subsection (3A) inserted by No. 56 of 2000, s. 12, Applied:14 Jul 2000] Despite subsection (3) , section 25(2)(b) does not apply to the application if the planning authority fulfilled the requirements of section 57(3) of the Land Use Planning and Approvals Act 1993 before being required to refer the application to the Board.

(4)  [Section 24 Subsection (4) amended by No. 45 of 2012, s. 7, Applied:06 Dec 2012] [Section 24 Subsection (4) amended by No. 45 of 2012, s. 7, Applied:06 Dec 2012] [Section 24 Subsection (4) amended by No. 56 of 2002, s. 4, Applied:19 Dec 2002] [Section 24 Subsection (4) substituted by No. 45 of 2007, s. 8, Applied:29 Nov 2007] An activity in respect of which an application is referred to the Board under subsection (1) and which is assessed under this Act as if it were a level 2 activity is subsequently to be treated for the purposes of this Act as a level 1 activity unless the Board determines otherwise.

(4A)  [Section 24 Subsection (4A) inserted by No. 45 of 2007, s. 8, Applied:29 Nov 2007] If the Board determines that an activity referred to in subsection (4) is not subsequently to be treated as a level 1 activity, the activity is to be treated, for the purposes of this Act, as if it were a level 2 activity and subsections (8A) , (8B) and (8C) of section 25 apply to the application in respect of that activity as if it were a level 2 activity.

(5)  In this section, permissible level 1 activity means a level 1 activity in respect of which a planning authority –

(a) has a discretion to refuse a permit; or

(b) is bound to grant a permit either unconditionally or subject to conditions.

25 Assessment of permissible level 2 activities

(1)  [Section 25 Subsection (1) amended by No. 56 of 2000, s. 13, Applied:14 Jul 2000] [Section 25 Subsection (1) amended by No. 84 of 1997, s. 26, Applied:01 Jan 1998] [Section 25 Subsection (1) amended by No. 56 of 2002, s. 5, Applied:19 Dec 2002] [Section 25 Subsection (1) substituted by No. 45 of 2007, s. 9, Applied:29 Nov 2007] Where an application has been made to a planning authority under the Land Use Planning and Approvals Act 1993 for a permit in respect of a use or development of land that is a permissible level 2 activity or a use or development of land that is on the same land as, and is not ancillary to, an existing level 2 activity, the planning authority must –

(a) [Section 25 Subsection (1) amended by No. 47 of 2015, s. 55, Applied:17 Dec 2015] except in the case of –

(i) an application made under Division 2A of Part 3 of the Land Use Planning and Approvals Act 1993 , as in force before the commencement of section 10 of the Land Use Planning and Approvals Amendment (Tasmanian Planning Scheme) Act 2015; or

(ia) [Section 25 Subsection (1) amended by No. 21 of 2020, s. 24, Applied:28 Oct 2020] an application for a permit to which section 60D of the Land Use Planning and Approvals Act 1993 applies; or

(ii) an application made under section 40T of the Land Use Planning and Approvals Act 1993 , as in force after the commencement of section 10 of the Land Use Planning and Approvals Amendment (Tasmanian Planning Scheme) Act 2015 –

deal with the application in accordance with section 57 of that Act; and

(b) [Section 25 Subsection (1) amended by No. 31 of 2020, s. 4, Applied:30 Nov 2020] refer the application to the Board as soon as practicable, but in any case within 21 days, after the date of lodgment of the application.

(1A)  [Section 25 Subsection (1A) inserted by No. 56 of 2000, s. 13, Applied:14 Jul 2000] [Section 25 Subsection (1A) substituted by No. 45 of 2007, s. 9, Applied:29 Nov 2007] For the purposes of subsection (1) , a use or development that is on the same land as an existing level 2 activity is not ancillary to that activity if –

(a) it constitutes conduct of works within the definition of that level 2 activity in Schedule 2 ; or

(b) it constitutes an intensification of the use or development of the land for the purposes of conducting the works which define that level 2 activity in Schedule 2 ; or

(c) it will, or is likely to, cause serious or material environmental harm; or

(d) it constitutes conduct of works within the meaning of any other level 2 activity in Schedule 2 .

(1B)  [Section 25 Subsection (1B) inserted by No. 56 of 2000, s. 13, Applied:14 Jul 2000] [Section 25 Subsection (1B) substituted by No. 45 of 2007, s. 9, Applied:29 Nov 2007] If a planning authority determines that a use or development of land that is on the same land as an existing level 2 activity is ancillary to that activity, the planning authority must, if required by any person, give written reasons in support of its determination.

(1C)  [Section 25 Subsection (1C) inserted by No. 56 of 2000, s. 13, Applied:14 Jul 2000] [Section 25 Subsection (1C) omitted by No. 45 of 2007, s. 9, Applied:29 Nov 2007] .  .  .  .  .  .  .  .  

(1D)  [Section 25 Subsection (1D) inserted by No. 56 of 2002, s. 5, Applied:19 Dec 2002] [Section 25 Subsection (1D) substituted by No. 47 of 2015, s. 55, Applied:17 Dec 2015] [Section 25 Subsection (1D) substituted by No. 46 of 2017, s. 7, Applied:04 Dec 2017] If an application in relation to an activity, other than an EL activity, is referred to the Board under subsection (1) , the Board is to determine within 14 days whether it needs to assess the activity to which the application relates.

(1DAA)  [Section 25 Subsection (1DAA) inserted by No. 46 of 2017, s. 7, Applied:04 Dec 2017] If an application that relates to an EL activity is referred to the Board under subsection (1) , the application is not an application to which subsection (1DAB) applies and there is no environmental licence in relation to the activity, the Board, within 42 days –

(a) is to determine under section 42K(2) whether to refuse to grant an environmental licence in relation to the activity; and

(b) if it refuses under section 42K(2) to grant an environmental licence in relation to the activity, is to determine that it does not need to assess the activity; and

(c) if it does not refuse under section 42K(2) to grant an environmental licence in relation to the activity, is to determine that it needs to assess the activity.

(1DAB)  [Section 25 Subsection (1DAB) inserted by No. 46 of 2017, s. 7, Applied:04 Dec 2017] If an application that relates to an EL activity is referred to the Board under subsection (1) and the application relates to a proposed expansion, intensification or modification of an activity that is carried out under an environmental licence, the Board, within 42 days –

(a) is to determine whether or not the proposed expansion, intensification or modification of an activity is environmentally significant; and

(b) if it determines that the proposed expansion, intensification or modification of an activity is environmentally significant, is to determine under section 42Q(2) whether to refuse to vary an environmental licence in relation to the activity; and

(c) if the Board –

(i) determines that the proposed expansion, intensification or modification of an activity is not environmentally significant; or

(ii) refuses under section 42Q(2) to vary an environmental licence in relation to the activity –

is to determine that it does not need to assess the activity; and

(d) if the Board –

(i) determines that the proposed expansion, intensification or modification of an activity is environmentally significant; and

(ii) does not refuse under section 42Q(2) to vary an environmental licence in relation to the activity –

is to determine that it needs to assess the activity.

(1DAC)  [Section 25 Subsection (1DAC) inserted by No. 46 of 2017, s. 7, Applied:04 Dec 2017] Subsection (1D) , subsection (1DAA) and subsection (1DAB) do not apply in relation to –

(a) an application made under Division 2A of Part 3 of the Land Use Planning and Approvals Act 1993 , as in force before the commencement of section 10 of the Land Use Planning and Approvals Amendment (Tasmanian Planning Scheme) Act 2015; or

(b) an application made under section 40T of the Land Use Planning and Approvals Act 1993 , as in force after the commencement of section 10 of the Land Use Planning and Approvals Amendment (Tasmanian Planning Scheme) Act 2015.

(1DA)  [Section 25 Subsection (1DA) amended by No. 46 of 2017, s. 7, Applied:04 Dec 2017] [Section 25 Subsection (1DA) inserted by No. 45 of 2007, s. 9, Applied:29 Nov 2007] The 14-day period referred to in subsection (1D) , or, in the case of an application in relation to an EL activity, the 42-day period referred to in subsection (1DAA) or subsection (1DAB) , or such lesser period as the Board requires, is to be disregarded for the purposes of the calculation of the periods referred to in sections 57(6) and 58(2) of the Land Use Planning and Approvals Act 1993 .

(1E)  [Section 25 Subsection (1E) inserted by No. 56 of 2002, s. 5, Applied:19 Dec 2002] [Section 25 Subsection (1E) substituted by No. 46 of 2017, s. 7, Applied:04 Dec 2017] The Board is taken to have determined that it needs to assess the activity to which the application relates under this Act if it has not notified the planning authority to the contrary –

(a) where paragraph (b) does not apply, before the end of the 14-day period referred to in subsection (1D) ; or

(b) if the activity is an EL activity, before the end of the 42-day period referred to in subsection (1DAA) or (1DAB) , as the case may be.

(2)  [Section 25 Subsection (2) amended by No. 84 of 1997, s. 26, Applied:01 Jan 1998] [Section 25 Subsection (2) substituted by No. 56 of 2000, s. 13, Applied:14 Jul 2000] [Section 25 Subsection (2) substituted by No. 56 of 2002, s. 5, Applied:19 Dec 2002] If the Board determines that it needs to assess the activity to which an application relates under this Act then, unless the application is refused under section 57(2) of the Land Use Planning and Approvals Act 1993 –

(a) [Section 25 Subsection (2) amended by No. 45 of 2007, s. 9, Applied:29 Nov 2007] the Board is to do the assessment in accordance with the Environmental Impact Assessment Principles and Division 1A and in consultation with the planning authority; and

(b) [Section 25 Subsection (2) amended by No. 45 of 2007, s. 9, Applied:29 Nov 2007] the planning authority is not to advertise the application in accordance with section 27G until it has received written notice from the Director that the Board has received sufficient information to satisfy the requirements of section 74(3) ; and

(c) [Section 25 Subsection (2) amended by No. 45 of 2007, s. 9, Applied:29 Nov 2007] .  .  .  .  .  .  .  .  

(d) the period referred to in section 54(1) of the Land Use Planning and Approvals Act 1993 is extended to 42 days; and

(e) [Section 25 Subsection (2) amended by No. 45 of 2012, s. 8, Applied:06 Dec 2012] section 57(6) of the Land Use Planning and Approvals Act 1993 does not apply until the completion of the Board's assessment of the activity; and

(f) the planning authority, notwithstanding any enactment to the contrary, is not required to assess any matter addressed in the Board's assessment under paragraph (a) ; and

(g) if, despite paragraph (f) , the planning authority does its own assessment of a matter addressed in the assessment under paragraph (a) , it is not entitled to recover the cost of its assessment from the applicant, the Crown or any other person.

(3)  [Section 25 Subsection (3) amended by No. 56 of 2000, s. 13, Applied:14 Jul 2000] [Section 25 Subsection (3) amended by No. 56 of 2000, s. 13, Applied:14 Jul 2000] [Section 25 Subsection (3) substituted by No. 56 of 2002, s. 5, Applied:19 Dec 2002] If the Board determines that it does not need to assess the activity to which an application relates under this Act –

(a) the planning authority may process the application without further reference to the Board; and

(b) the Board's determination does not affect a requirement to assess the application under the Land Use Planning and Approvals Act 1993 or any other Act; and

(c) for an application referred under subsection (1) , subsections (1)(a) and (2) do not apply.

(4)  [Section 25 Subsection (4) substituted by No. 56 of 2000, s. 13, Applied:14 Jul 2000] [Section 25 Subsection (4) omitted by No. 56 of 2002, s. 5, Applied:19 Dec 2002] [Section 25 Subsection (4) inserted by No. 46 of 2017, s. 7, Applied:04 Dec 2017] Subsection (4A) applies in relation to an application if the Board –

(a) in accordance with subsection (1DAA)(b) or  (1DAB)(c) , determines that it does not need to assess an activity to which an application relates; and

(b) has directed the planning authority, in a notice under section 27AC(2) , to refuse to grant a permit in relation to the activity.

(4A)  [Section 25 Subsection (4A) inserted by No. 46 of 2017, s. 7, Applied:04 Dec 2017] If this subsection applies in relation to an application, the planning authority is to determine the application under section 57(6) of the Land Use Planning and Approvals Act 1993 in accordance with the direction under section 27AC(2) , without exhibiting the application in accordance with section 57(3) of the Land Use Planning and Approvals Act 1993 , and for that purpose –

(a) section 57(3) of the Land Use Planning and Approvals Act 1993 does not apply in relation to the application; and

(b) the reference in section 57(6) of the Land Use Planning and Approvals Act 1993 to a notice under subsection (3) is to be taken to be a reference to the notice to the planning authority in accordance with section 27AC(2) .

(5)  [Section 25 Subsection (5) amended by No. 46 of 2017, s. 7, Applied:04 Dec 2017] [Section 25 Subsection (5) amended by No. 45 of 2012, s. 8, Applied:06 Dec 2012] [Section 25 Subsection (5) substituted by No. 56 of 2000, s. 13, Applied:14 Jul 2000] On completion of an assessment under this section in relation to an activity, other than an EL activity –

(a) the Board must notify the planning authority –

(i) of any condition or restriction which the Board requires to be contained in a permit granted by the planning authority under the Land Use Planning and Approvals Act 1993 in respect of the activity; and

(ii) of the reasons for requiring the condition or restriction; or

(b) the Board must –

(i) direct the planning authority to refuse to grant the permit; and

(ii) notify the planning authority of the reasons for giving the direction.

(6)  [Section 25 Subsection (6) amended by No. 46 of 2017, s. 7, Applied:04 Dec 2017] Conditions which the Board may, under subsection (5) , require to be contained in a permit granted by the planning authority under the Land Use Planning and Approvals Act 1993 may include–

(a) a condition requiring the person to whom the permit is granted to apply for a further permit under the Act in the event of a proposed change in the activity which might result in environmental harm; and

(b) a condition requiring the person to whom the permit is granted to prepare, and submit to the Board for approval, an environmental management plan for the proposed activity; and

(c) a condition requiring the person to whom the permit is granted to undertake regular monitoring of the environmental effects of the activity and to report the results of that monitoring to the Board on a regular basis; and

(d) a condition providing that the activity can be undertaken only for a specified period of time, after which period a further permit under that Act may be required; and

(e) [Section 25 Subsection (6) amended by No. 56 of 2000, s. 13, Applied:14 Jul 2000] a condition requiring that, if the activity ceases, the site must be rehabilitated in accordance with the Board's requirements; and

(ea) [Section 25 Subsection (6) amended by No. 42 of 2022, s. 12, Applied:14 Dec 2022] a condition that gives effect to an environmental standards condition or a technical standard; and

(f) [Section 25 Subsection (6) amended by No. 56 of 2000, s. 13, Applied:14 Jul 2000] a condition requiring the person to whom the permit is granted to undertake such measures as the Board may specify to limit the environmental effects of traffic movements to and from the land to which the permit applies.

(7)  [Section 25 Subsection (7) omitted by No. 56 of 2000, s. 13, Applied:14 Jul 2000] .  .  .  .  .  .  .  .  

(8)  [Section 25 Subsection (8) amended by No. 46 of 2017, s. 7, Applied:04 Dec 2017] Where the Board has, under subsection (5) , required conditions or restrictions to be contained in a permit or has directed a planning authority to refuse to grant a permit, the planning authority–

(a) must include any such condition or restriction in a permit granted by it or must not grant the permit; and

(b) [Section 25 Subsection (8) amended by No. 56 of 2000, s. 13, Applied:14 Jul 2000] must not include any other condition or restriction which is inconsistent with, or which extends the operation of, any conditions or restrictions which the Board requires to be contained in the permit; and

(c) [Section 25 Subsection (8) amended by No. 56 of 2000, s. 13, Applied:14 Jul 2000] must notify the Board of its decision to grant or refuse to grant a permit; and

(d) [Section 25 Subsection (8) amended by No. 56 of 2000, s. 13, Applied:14 Jul 2000] must, at the same time as it serves notice of its decision in accordance with section 57(7) of the Land Use Planning and Approvals Act 1993 , notify in writing the applicant and any persons who made representations under section 57(5) of the Land Use Planning and Approvals Act 1993 in respect of the application –

(i) of the conditions or restrictions that the Board requires to be contained in the permit or of the direction to the planning authority to refuse to grant the permit; and

(ii) [Section 25 Subsection (8) amended by No. 56 of 2002, s. 5, Applied:19 Dec 2002] of the reasons of the Board for requiring the conditions or restrictions to be contained in the permit or for giving the direction; and

(e) [Section 25 Subsection (8) amended by No. 56 of 2002, s. 5, Applied:19 Dec 2002] must not, if it grants the permit, exercise its power under section 56(2) of the Land Use Planning and Approvals Act 1993 in respect of that permit without the prior written consent of the Board.

(8A)  [Section 25 Subsection (8A) inserted by No. 56 of 2002, s. 5, Applied:19 Dec 2002] If a permit is issued with conditions or restrictions required by the Board, the planning authority is not required or entitled to exercise any power that it could otherwise exercise under this or any other Act to enforce those conditions or restrictions unless the Director and the planning authority have, in writing, agreed otherwise.

(8B)  [Section 25 Subsection (8B) inserted by No. 56 of 2002, s. 5, Applied:19 Dec 2002] Subsection (8A) has effect notwithstanding Part 4 of this Act, Part 4 of the Land Use Planning and Approvals Act 1993 or any other enactment.

(8C)  [Section 25 Subsection (8C) inserted by No. 56 of 2002, s. 5, Applied:19 Dec 2002] The Director may, by notice in writing to a planning authority, revoke any agreement that the Director has entered into with that planning authority for the purposes of subsection (8A) .

(8D)  [Section 25 Subsection (8D) inserted by No. 45 of 2007, s. 9, Applied:29 Nov 2007] [Section 25 Subsection (8D) substituted by No. 46 of 2017, s. 7, Applied:04 Dec 2017] Subject to any further period agreed under section 57(6A) or 58(2A) of the Land Use Planning and Approvals Act 1993 and to the receipt by the planning authority of additional information sufficient to satisfy a requirement under section 54 of that Act, the planning authority is to make its decision to grant or refuse to grant the permit –

(a) within 42 days after receiving notification from the Board under subsection (5) ; or

(b) within 42 days after receiving, under section 42M(2) or section 42R(1) , a notice from the Board in relation to the activity.

(9)  In this section, permissible level 2 activity means a level 2 activity in respect of which a planning authority –

(a) has a discretion to refuse a permit; or

(b) is bound to grant a permit either unconditionally or subject to conditions.

25A Assessment of applications for permits that are combined with applications for planning scheme amendments

[Section 25A Inserted by No. 84 of 1997, s. 26, Applied:01 Jan 1998]

(1)  [Section 25A Subsection (1) amended by No. 46 of 2017, s. 8, Applied:04 Dec 2017] [Section 25A Subsection (1) amended by No. 47 of 2015, s. 56, Applied:17 Dec 2015] [Section 25A Subsection (1) substituted by No. 56 of 2002, s. 6, Applied:19 Dec 2002] If an application for a permit made under Division 2A of Part 3 of the Land Use Planning and Approvals Act 1993 , as in force before the commencement of section 10 of the Land Use Planning and Approvals Amendment (Tasmanian Planning Scheme) Act 2015, is referred to it under section 24 or 25 and the activity to which the application relates is not an EL activity, the Board –

(a) is to assess the activity to which the application relates; and

(b) may, by notice in writing served on the applicant for the permit within 28 days after the day of referral, require the applicant to provide it with additional information for the purpose of the assessment.

(1A)  [Section 25A Subsection (1A) amended by No. 46 of 2017, s. 8, Applied:04 Dec 2017] [Section 25A Subsection (1A) inserted by No. 47 of 2015, s. 56, Applied:17 Dec 2015] If an application for a permit made under section 40T of the Land Use Planning and Approvals Act 1993 , as in force after the commencement of section 10 of the Land Use Planning and Approvals Amendment (Tasmanian Planning Scheme) Act 2015, is referred to it under section 24 or 25 and the activity to which the application relates is not an EL activity, the Board –

(a) is to assess the activity to which the application relates; and

(b) may, by notice in writing served on the applicant for the permit within 28 days after the day of referral, require the applicant to provide it with additional information for the purpose of the assessment.

(1AB)  [Section 25A Subsection (1AB) inserted by No. 21 of 2020, s. 25, Applied:28 Oct 2020] This section does not apply in relation to an application for a permit to which section 60D of the Land Use Planning and Approvals Act 1993 applies.

(1B)  [Section 25A Subsection (1B) inserted by No. 46 of 2017, s. 8, Applied:04 Dec 2017] Subsection (1C) applies to –

(a) an application for a permit made under Division 2A of Part 3 of the Land Use Planning and Approvals Act 1993 , as in force before the commencement of section 10 of the Land Use Planning and Approvals Amendment (Tasmanian Planning Scheme) Act 2015; and

(b) an application for a permit made under section 40T of the Land Use Planning and Approvals Act 1993 , as in force after the commencement of section 10 of the Land Use Planning and Approvals Amendment (Tasmanian Planning Scheme) Act 2015 –

if the activity to which the application relates is an EL activity.

(1C)  [Section 25A Subsection (1C) inserted by No. 46 of 2017, s. 8, Applied:04 Dec 2017] If an application, in relation to an activity, to which this subsection applies is referred to the Board under section 25  –

(a) the Board, if the application –

(i) is not an application to which subparagraph (ii) applies, must, within 42 days, determine under section 42K(2) whether to refuse to grant an environmental licence in relation to the activity; or

(ii) relates to a proposed expansion, intensification or modification of an activity that is carried out under an environmental licence, must, within 42 days, determine under section 42Q(2) whether to refuse to vary an environmental licence in relation to the activity; and

(b) the Board –

(i) if it refuses under section 42K(2) or section 42Q(2) to grant or vary an environmental licence in relation to the activity, must determine that it does not need to assess the activity; or

(ii) if it does not refuse under section 42K(2) or section 42Q(2) to grant or vary an environmental licence in relation to the activity, must assess the activity; and

(c) the Board may, by notice in writing served on the applicant for the permit within 28 days after the day of referral, require the applicant to provide it with additional information for the purpose of the assessment.

(1D)  [Section 25A Subsection (1D) inserted by No. 46 of 2017, s. 8, Applied:04 Dec 2017] If the Board, in accordance with subsection (1C)(b)(i) , determines that it does not need to assess an activity to which an application, referred to the Board under section 25 , relates and has directed the planning authority, in a notice under section 27AC(2) , to refuse to grant a permit in relation to the activity –

(a) the planning authority, after determining, under section 40Y of the Land Use Planning and Approvals Act 1993 , the application in accordance with the notice under section 27AC(2) by refusing to grant a permit, is to give notice to the applicant of the determination; and

(b) the planning authority is to be taken to have refused, under section 38 of the Land Use Planning and Approvals Act 1993 , to prepare a draft amendment of an LPS that is referred to in a request under section 40T of that Act in relation to the application for a permit; and

(c) despite any other provision of the Land Use Planning and Approvals Act 1993 , no further action by the planning authority or the Commission is to be taken under the Land Use Planning and Approvals Act 1993 in relation to –

(i) the application; or

(ii) the application, for an amendment to an LPS, that is referred to in a request under section 40T of that Act in relation to the application for a permit.

(2)  [Section 25A Subsection (2) amended by No. 46 of 2017, s. 8, Applied:04 Dec 2017] If the Board requires the applicant under subsection (1) , (1A) or (1C) to provide it with additional information, the period referred to in subsection (3) does not run while the request for information has not been answered to the satisfaction of the Board.

(3)  [Section 25A Subsection (3) amended by No. 46 of 2017, s. 8, Applied:04 Dec 2017] [Section 25A Subsection (3) amended by No. 46 of 2017, s. 8, Applied:04 Dec 2017] [Section 25A Subsection (3) amended by No. 47 of 2015, s. 56, Applied:17 Dec 2015] The Board must complete its assessment, if any, for the purposes of the Land Use Planning and Approvals Act 1993 , of an application referred to in subsection (1) , (1A) or (1C) , and notify the planning authority of the result of that assessment, within 10 weeks of the date on which the application was referred to the Board or such longer period as the Minister may allow.

(3A)  [Section 25A Subsection (3A) inserted by No. 46 of 2017, s. 8, Applied:04 Dec 2017] For the purposes of subsection (3) , the result of the assessment, for the purposes of the Land Use Planning and Approvals Act 1993 , is the result of the assessment before the Board takes into account any representations, in relation to the application, that are provided to the Board under section 41(3) of that Act.

(3B)  [Section 25A Subsection (3B) inserted by No. 46 of 2017, s. 8, Applied:04 Dec 2017] The Board must complete its assessment, for the purposes of making a determination under Division 8 of Part 3 in relation to an application referred to in subsection (1C) , as soon as practicable after the date on which the application was referred to the Board.

(3C)  [Section 25A Subsection (3C) inserted by No. 46 of 2017, s. 8, Applied:04 Dec 2017] For the purposes of subsection (3B) , the Board is to complete its assessment of an application referred to in subsection (1C) , after taking into account any representations, in relation to the application, that are provided to the Board under section 41(3) of the Land Use Planning and Approvals Act 1993 .

(3D)  [Section 25A Subsection (3D) inserted by No. 46 of 2017, s. 8, Applied:04 Dec 2017] Section 41(4) of the Land Use Planning and Approvals Act 1993 does not apply in relation to an application referred to in subsection (1C) .

(4)  [Section 25A Subsection (4) amended by No. 46 of 2017, s. 8, Applied:04 Dec 2017] [Section 25A Subsection (4) amended by No. 47 of 2015, s. 56, Applied:17 Dec 2015] [Section 25A Subsection (4) amended by No. 45 of 2012, s. 9, Applied:06 Dec 2012] Division 1A of this Part and subsections (6) and (7) of section 74 do not apply to the assessment by the Board of an application referred to in subsection (1) , (1A) or (1C) .

26 Assessment of level 3 activities

[Section 26 Amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] [Section 26 Amended by No. 28 of 2009, s. 20, Applied:01 Sep 2009] Where an order has been made under section 18 (2) of the State Policies and Projects Act 1993 declaring a project to be a project of State significance, a direction under section 20 (1) of that Act may require the Tasmanian Planning Commission established under the Tasmanian Planning Commission Act 1997 to undertake the integrated assessment of the project of State significance in accordance with the Environmental Impact Assessment Principles.

27 Assessment of activities which do not require a permit

(1)  Where a person proposes to undertake a level 2 activity which does not require a permit under the Land Use Planning and Approvals Act 1993 , that person must refer the proposed activity to the Board for assessment under this Act.

(1A)  [Section 27 Subsection (1A) inserted by No. 56 of 2000, s. 14, Applied:14 Jul 2000] Subsection (1) does not apply to a waste transport business in respect of the transport of controlled waste to Tasmania from another State or a Territory or from Tasmania to another State or a Territory if –

(a) that business is permitted under the laws of the State or Territory in which it has its principal place of business; and

(b) the transfer of the controlled waste is conducted in accordance with any conditions or restrictions imposed by or under the laws of that State or Territory.

(2)  Where the Director is of the opinion that it is expedient in the public interest to do so, having regard to the environmental impact of any other proposed environmentally relevant activity (other than a level 1 activity, level 2 activity or level 3 activity) for which a permit is not required, the Director may direct the person who proposes to undertake the environmentally relevant activity to refer details of the proposed activity to the Board for assessment under this Act and that person must comply with that direction.

(3)  [Section 27 Subsection (3) amended by No. 45 of 2007, s. 10, Applied:29 Nov 2007] Subject to subsection (4) , the Board must undertake, in accordance with the Environmental Impact Assessment Principles and Division 1A , an assessment of an activity which has been referred to the Board under this section.

(4)  [Section 27 Subsection (4) amended by No. 45 of 2007, s. 10, Applied:29 Nov 2007] If the Board is of the opinion that an activity which has been referred to the Board under this section will not result in serious or material environmental harm, the Board may notify the person who proposes to undertake the activity that an assessment under this Act is not required and must, if required by any person, give written reasons in support of that opinion.

(5)  [Section 27 Subsection (5) amended by No. 56 of 2000, s. 14, Applied:14 Jul 2000] [Section 27 Subsection (5) substituted by No. 45 of 2007, s. 10, Applied:29 Nov 2007] Subject to subsection (4) , a person must not commence an activity which must be referred to the Board under this section until the assessment by the Board has been made.

Penalty:  Fine not exceeding 500 penalty units.

(6)  [Section 27 Subsection (6) substituted by No. 56 of 2000, s. 14, Applied:14 Jul 2000] On completion of an assessment, the Board must –

(a) cause the Director to, within 7 days after completion of the assessment –

(i) [Section 27 Subsection (6) amended by No. 45 of 2007, s. 10, Applied:29 Nov 2007] issue and serve on the person who proposes to undertake the activity which has been referred to the Board under this section an environment protection notice containing the conditions or restrictions (if any) which the Board requires to apply to the activity and the reasons for those conditions or restrictions; and

(ii) [Section 27 Subsection (6) amended by No. 45 of 2007, s. 10, Applied:29 Nov 2007] by notice in writing served on any person who has made a representation in relation to the activity in accordance with section 74(6) , notify that person of the issue of the environment protection notice and the conditions or restrictions (if any) that the Board requires to apply to the activity and the reasons for those conditions or restrictions; or

(b) by notice in writing served within 7 days after completion of the assessment –

(i) [Section 27 Subsection (6) amended by No. 45 of 2007, s. 10, Applied:29 Nov 2007] on the person who proposes to undertake the activity, notify that person that the activity must not proceed, together with reasons in support of the Board's decision; and

(ii) [Section 27 Subsection (6) amended by No. 45 of 2007, s. 10, Applied:29 Nov 2007] on any person who has made a representation in relation to the activity in accordance with section 74(6) , notify that person that the activity must not proceed, together with reasons in support of the Board's decision.

(7)  [Section 27 Subsection (7) amended by No. 56 of 2000, s. 14, Applied:14 Jul 2000] A person aggrieved by the decision of the Board may, within 14 days after the day on which the notice was served under subsection (6) , appeal to the Appeal Tribunal.

(8)  [Section 27 Subsection (8) inserted by No. 46 of 2017, s. 9, Applied:04 Dec 2017] This section does not apply in relation to an activity to which section 27AA applies.

27AA Assessment of EL activities where no planning permit required or where Director refers proposal for variation to Board

[Section 27AA Inserted by No. 46 of 2017, s. 10, Applied:04 Dec 2017]

(1)  If a person proposes to undertake a level 2 activity that is an EL activity and that does not require a permit under the Land Use Planning and Approvals Act 1993 , the person must refer the proposed activity to the Board for assessment under this Act.

(2)  Subsection (1) does not apply in relation to an activity if –

(a) an application has been made under the Living Marine Resources Management Act 1995 for a marine farming licence in relation to the activity; or

(b) there is a permit, issued under section 12 or 14 of the Living Marine Resources Management Act 1995 , that is in force in relation to the activity.

(3)  If an activity is referred to the Board under subsection (1) or an application in relation to an activity is referred to the Board under section 42I(2)  –

(a) the Board must determine under section 42K(2) whether to refuse to grant an environmental licence in relation to the activity; and

(b) if the Board does not refuse under section 42K(2) to grant an environmental licence in relation to the activity, the Board must undertake, in accordance with the Environmental Impact Assessment Principles and Division 1A , an assessment of the activity.

(4)  If an application in relation to an activity is referred to the Board under section 42O  –

(a) the Board must determine under section 42Q(2) whether to refuse to vary an environmental licence in relation to the activity; and

(b) if the Board does not refuse under section 42Q(2) to vary an environmental licence in relation to the activity, the Board must undertake, in accordance with the Environmental Impact Assessment Principles and Division 1A , an assessment of the activity.

(5)  If a proposal to vary an environmental licence in relation to an activity is referred to the Board under section 42P(6), (7) or (8), the Board must –

(a) notify the holder of the licence; and

(b) undertake, in accordance with the Environmental Assessment Principles and Division 1A, an assessment of the activity.

27AB.

[Section 27AB Inserted by No. 46 of 2017, s. 10, Applied:04 Dec 2017] [Section 27AB Repealed by No. 21 of 2020, s. 26, Applied:28 Oct 2020]

27AC Directions in relation to permits in respect of EL activities

[Section 27AC Inserted by No. 46 of 2017, s. 10, Applied:04 Dec 2017]

(1)  In this section –

Commission means the Tasmanian Planning Commission established under the Tasmanian Planning Commission Act 1997 ;

[Section 27AC Subsection (1) amended by No. 21 of 2020, s. 27, Applied:28 Oct 2020]

[Section 27AC Subsection (1) amended by No. 21 of 2020, s. 27, Applied:28 Oct 2020] permit means a permit under the Land Use Planning and Approvals Act 1993 .

(2)  As soon as practicable after the Board has decided under section 42K or section 42Q to refuse to grant or vary an environmental licence in relation to an activity –

(a) to which relates an application, referred to the Board under section 25 , including an application to which section 25A relates, the Board must, by notice to the planning authority, direct the planning authority; or

(b) [Section 27AC Subsection (2) amended by No. 21 of 2020, s. 27, Applied:28 Oct 2020] referred to in an application to which section 25A relates, the Board must, by notice to the Commission, direct the Commission –

(c) [Section 27AC Subsection (2) amended by No. 21 of 2020, s. 27, Applied:28 Oct 2020] .  .  .  .  .  .  .  .  

to refuse to grant a permit in relation to the activity or the project, as the case may be.

(3)  [Section 27AC Subsection (3) amended by No. 21 of 2020, s. 27, Applied:28 Oct 2020] [Section 27AC Subsection (3) amended by No. 21 of 2020, s. 27, Applied:28 Oct 2020] If the Board has, under subsection (2) , directed a planning authority or the Commission to refuse to grant a permit in relation to an activity or the project, the planning authority or the Commission, as the case may be –

(a) must refuse under the Land Use Planning and Approvals Act 1993 to grant a permit in relation to the activity or the project; and

(b) must notify the Board of its decision to refuse to grant a permit.

(4)  [Section 27AC Subsection (4) amended by No. 21 of 2020, s. 27, Applied:28 Oct 2020] [Section 27AC Subsection (4) amended by No. 21 of 2020, s. 27, Applied:28 Oct 2020] If the Board, under section 42M(2) or section 42R(1) , gives a relevant notice, to a planning authority or the Commission, specifying that the Board has granted or varied an environmental licence in relation to an activity, the planning authority or the Commission, as the case may be, must not impose on a permit in relation to the activity a condition or restriction which is inconsistent with, or extends or restricts the operation of, a condition or restriction imposed on the licence.

(5)  [Section 27AC Subsection (5) amended by No. 21 of 2020, s. 27, Applied:28 Oct 2020] [Section 27AC Subsection (5) amended by No. 21 of 2020, s. 27, Applied:28 Oct 2020] [Section 27AC Subsection (5) amended by No. 21 of 2020, s. 27, Applied:28 Oct 2020] If a planning authority or the Commission grants a permit in relation to an activity to which section 25 or 25A relates, the planning authority or Commission, respectively, must, within 7 days, notify the Board of the grant of the permit and provide to the Board a copy of the permit.

27AD Minor variations of planning permit in relation to EL activities

[Section 27AD Inserted by No. 46 of 2017, s. 10, Applied:04 Dec 2017]

(1)  If a permit is granted under the Land Use Planning and Approvals Act 1993 in relation to an EL activity, the permit must not be amended under section 43 or 56 of that Act without the approval of the Board.

(2)  A planning authority may apply to the Board for approval to amend under section 43 or 56 of the Land Use Planning and Approvals Act 1993 a permit in relation to an EL activity.

(3)  As soon as practicable after receiving an application under subsection (2) in relation to an activity, the Board must notify the planning authority whether the Board approves, or refuses to approve, the amendment, under section 43 or 56 of the Land Use Planning and Approvals Act 1993 , of a permit in relation to the activity.

Division 1A Assessment of activities

27A Classes of assessment

[Section 27A of Part 3 Inserted by No. 45 of 2007, s. 11, Applied:29 Nov 2007] [Section 27A Substituted by No. 45 of 2012, s. 10, Applied:06 Dec 2012]

(1)  [Section 27A Subsection (1) amended by No. 46 of 2017, s. 11, Applied:04 Dec 2017] An assessment by the Board of an activity, pursuant to section 25 , 27 or 27AA , is to be one of the following classes:

(a) class 2A;

(b) class 2B;

(c) class 2C.

(2)  In determining a class of assessment under this Part, the Board is to take into consideration the characteristics set out in Schedule 5 .

(3)  The Minister, by order, may amend Schedule 5 by doing any one or more of the following:

(a) inserting a characteristic in the Schedule;

(b) omitting a characteristic from the Schedule;

(c) omitting a characteristic from the Schedule and substituting another characteristic.

(4)  The provisions of section 47(3) , (3A) , (4) , (5) , (6) and (7) of the Acts Interpretation Act 1931 apply to an order under this section as if the order were regulations within the meaning of that Act.

(5)  An order under this section is not an instrument of a legislative character for the purposes of the Subordinate Legislation Act 1992 .

(6)  An order under this section is a regulation for the purposes of the Subordinate Legislation Committee Act 1969 .

27B Notice of intent

[Section 27B of Part 3 Inserted by No. 45 of 2007, s. 11, Applied:29 Nov 2007]

(1)  A person who lodges an application for a permit for a permissible level 2 activity may first lodge with the Board a notice of intent.

(1A)  [Section 27B Subsection (1A) inserted by No. 46 of 2017, s. 12, Applied:04 Dec 2017] If a notice of intent lodged under subsection (1) relates to an EL activity –

(a) the Board, if the activity to which the notice of intent refers –

(i) is not an activity to which subparagraph (ii) applies, must determine under section 42K(2) whether to refuse to grant an environmental licence in relation to the activity; or

(ii) relates to a proposed expansion, intensification or modification of an activity that is carried out under an environmental licence, must determine under section 42Q(2) whether to refuse to vary an environmental licence in relation to the activity; and

(b) the Board, if it refuses under section 42K(2) or section 42Q(2) to grant or vary an environmental licence in relation to the activity, is not to take any further action under this Division in relation to the project to which the activity relates.

(2)  [Section 27B Subsection (2) amended by No. 45 of 2012, s. 11, Applied:06 Dec 2012] A notice of intent is to contain the following information in sufficient detail to enable the Board to determine the appropriate class of assessment:

(a) the name and contact details of the person lodging the application;

(b) the name of the proposed project and its location;

(c) background of the project proponent, including details of the proponent's experience and financial capacity to undertake the project and his, her or its contact details;

(d) a description of the proposed project, including its key physical components;

(e) an outline of the proposed location of the project and a general site location map;

(f) an outline of the stakeholder consultation process undertaken or proposed to be undertaken, including the consultation method, stakeholders consulted or to be consulted and the issues raised or to be raised;

(g) a general description of the physical environment that may be affected by the project;

(h) the key environmental, health, economic and social issues identified for the project to date;

(i) the surveys and studies proposed or underway in relation to the key issues for the project;

(j) the proposed timetable for the project;

(k) any other details that the Board may consider relevant to the project.

27C Board to advise of proposed class of assessment

[Section 27C of Part 3 Inserted by No. 45 of 2007, s. 11, Applied:29 Nov 2007] [Section 27C Amended by No. 46 of 2017, s. 13, Applied:04 Dec 2017] The Board is to advise the proponent or applicant, and, except if section 27AA applies, the planning authority, of the class of assessment that is proposed to be undertaken under section 27A within 14 days of –

(a) [Section 27C Amended by No. 45 of 2012, s. 12, Applied:06 Dec 2012] the lodgment of a notice of intent that is acceptable to the Board under section 27B(2) or the referral of an application under section 25(1) , whichever occurs first; or

(b) the referral of an application under section 24(1) ; or

(c) [Section 27C Amended by No. 46 of 2017, s. 13, Applied:04 Dec 2017] the referral of a proposal under section 27(1) or (2) , section 27AA(1) , section 42I , section 42O or section 42P(6) , (7) or (8) .

27D Periods for provision of guidance under section 74(4)

[Section 27D of Part 3 Inserted by No. 45 of 2007, s. 11, Applied:29 Nov 2007] Subject to section 27E , the Board must provide guidance under section 74(4)  –

(a) in the case of a class 2A assessment, within 21 days; or

(b) in the case of a class 2B assessment, within 28 days; or

(c) in the case of a class 2C assessment, within 63 days –

of the Board's advice under section 27C .

27E Board may require further information

[Section 27E of Part 3 Inserted by No. 45 of 2007, s. 11, Applied:29 Nov 2007]

(1)  The Board may require a person to provide information to assist it in the provision of guidance under section 74(4) .

(2)  [Section 27E Subsection (2) amended by No. 45 of 2012, s. 13, Applied:06 Dec 2012] If the Board requires the provision of information under subsection (1) , the periods specified in section 27D do not run, or cease running, until that information has been provided to the satisfaction of the Board.

27F Case for assessment to be lodged within 12 months

[Section 27F of Part 3 Inserted by No. 45 of 2007, s. 11, Applied:29 Nov 2007]

(1)  A case for assessment of an application or proposal must be –

(a) in accordance with the guidance provided by the Board under section 74(4) ; and

(b) lodged with the Board within 12 months after the Board provides that guidance, or within such other period as determined by written agreement between the Board and the applicant or proponent.

(1A)  [Section 27F Subsection (1A) inserted by No. 31 of 2020, s. 5, Applied:30 Nov 2020] A case for assessment is not taken to be lodged with the Board until the applicant or proponent has been notified by the Board under section 27FA(3) that the case for assessment has been accepted.

(2)  If a case for assessment referred to in subsection (1) is not lodged within the period specified in that subsection, the Board –

(a) is not required to complete the assessment; and

(b) may reject the application or proposal.

(3)  If the Board rejects an application or proposal under subsection (2)(b)  –

(a) the Board is to notify the applicant or proponent of that rejection; and

(b) the Board may, in the case of an application for a permit for a permissible level 2 activity, direct the relevant planning authority to refuse to grant the application; and

(c) the applicant or proponent is to pay the assessment fee, or such portion of it as the Board determines.

(4)  The planning authority must comply with a direction under subsection (3) .

(5)  A person who is aggrieved by a decision of the Board to reject, under subsection (2)(b) , a proposal referred to it under section 27(1) or (2) , may appeal to the Appeal Tribunal within 14 days after being notified of the Board's decision.

27FA Acceptance by Board of case for assessment

[Section 27FA Inserted by No. 31 of 2020, s. 6, Applied:30 Nov 2020]

(1)  In this section –

applicant or proponent, in respect of a case for assessment, means the applicant or proponent in respect of the application or proposal to which the case for assessment relates;

required information, in relation to a case for assessment, means the information required in order to satisfy the Board’s requirements, as referred to in section 74(3) , in respect of the application or proposal to which the case for assessment relates.

(2)  An applicant or proponent in respect of a case for assessment may request the Board to accept the case for assessment.

(3)  The Board, within 42 days after the day on which a request is made to the Board under subsection (2) in relation to a case for assessment, is to, by notice in writing to the applicant or proponent in respect of the case for assessment, advise the applicant or proponent as to whether the case for assessment has been accepted by the Board or has not been accepted by the Board.

(4)  If the Board, within 40 days after the day on which a request is made to the Board under subsection (2) in relation to a case for assessment, is not satisfied that the case for assessment includes the required information, the Board is to, by notice in writing to the applicant or proponent in respect of the case for assessment –

(a) advise the applicant or proponent that the information included in the case for assessment is insufficient or unsatisfactory, or both, as the case may be; and

(b) request the applicant or proponent to provide to the Board a case for assessment that includes the information specified in the notice.

(5)  If the Board gives, under subsection (4) or this subsection, a notice (the relevant notice) to an applicant or proponent, the Board must, within 8 days from the day on which it receives a case for assessment in accordance with the relevant notice, if the Board is not satisfied that the information specified in the relevant notice has been included in the case for assessment, by notice in writing to the applicant or proponent –

(a) advise the applicant or proponent that the Board is not satisfied that the information specified in the relevant notice has been included in the case for assessment; and

(b) request the applicant or proponent to provide to the Board a case for assessment that includes the information specified in the notice under this subsection.

(6)  If the Board gives, under subsection (4) or subsection (5) , a notice to an applicant or proponent in respect of a case for assessment, the 42-day period referred to in subsection (3) does not continue to run, in relation to the case for assessment, during the period –

(a) beginning on the day on which the first such notice is given to the applicant or proponent; and

(b) ending on the day on which the applicant or proponent provides to the Board a case for assessment that the Board is satisfied includes the information specified in the notice under subsection (4) or subsection (5) , respectively.