Civil enforcement proceedings

In some circumstances, Tasmanian citizens are able to initiate legal proceedings to safeguard their environment.

The most common action are carried out under:

  • Planning law - the Land Use Planning and Approvals Act 1993 (commonly referred to as ‘LUPAA’)
  • Pollution laws - the Environmental Management and Pollution Control Act 1994 (commonly referred to as ‘EMPCA’)

enforcement.jpg Under these pieces of legislation, you can commence proceedings seeking an enforcement order against someone who is breaching (or likely to breach) a planning permit or planning scheme, building an unauthorised dam, taking too much water from a river system or causing environmental harm.

These actions are called Civil Enforcement.

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

☛ See Chapter 14 for more information about the operation of the Tribunal.

How can I enforce planning laws?

:!: You can initiate this action using Section 64 of LUPAA.

You can initiate proceedings against a person who:

  • has breached, or is likely to breach, a condition of a development permit or a decision of the Tribunal;
  • undertakes a prohibited development - that is, carries out a development or activity or changes the use of land without the necessary planning permits

Actions under LUPAA must be commenced within 2 years of the date of the breach you are concerned about.

The Tasmanian Planning Commission (TPC) also has power to bring Civil Enforcement proceedings for actual or potential breaches that have been brought to their attention. In practice, the Commission rarely takes such proceedings.

:!: Municipal councils have an obligation to uphold their Planning Schemes. In addition to civil enforcement, councils can also be prosecuted for failing to enforce their planning schemes. Hobart City Council has already been taken to court under these provisions.

How can I enforce pollution laws?

:!: You can initiate this action under Section 48 of EMPCA.

You can initiate proceedings against a person who:

  • has engaged, is engaging, or is proposing to engage in conduct in contravention of EMPCA; or
  • has refused or failed or is refusing or failing to take any action required by EMPCA; or
  • has caused environmental harm.

For example, you could take action where a person:

  • does something that causes an actual adverse effect on the environment or threatens human health
  • emits a pollutant that unreasonably interferes with your enjoyment of your property (such as consistently releasing dust or operating late at night and interrupting your sleep)
  • breaches the conditions of an Environment Protection Notice, an Environmental Improvement Plan or environmental conditions of any relevant planning permit.

You must bring proceedings within 3 years of the date of the action that causes environmental harm.

The Director of the EPA and the council that issued the permit may also bring Civil Enforcement proceedings against a person who is not complying with the permit requirements.

Who may bring Civil Enforcement actions?

  • A local council
  • The Director of Environmental Management (in EMPCA proceedings only)
  • The Tasmanian Planning Commission (in LUPAA proceedings only)
  • Any person who can show that they have a proper interest in the issue they are taking action against.

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

For example, you may live near the development, teach at a school affected by the pollution or be part of a Coastcare group responsible for looking after the area of beach being polluted. going_it_alone2.jpg

How do I initiate legal proceedings?

You can download an Application Form from the Tribunal website.

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

:!: If you are thinking about taking such action, you should read through the Practice Directions on the Tribunal website. EDO Tasmania also produces “GOING IT ALONE - A Practical Guide for Unrepresented Litigants in the Resource Management and Planning Appeal Tribunal”, which provides useful tips on how to take action. Contact the EDO on 6223 2770 to order a copy of Going It Alone.

What happens in the Tribunal?

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

A Civil Enforcement action generally involves the following basic procedures:

  • You can apply “ex parte” by completing the relevant application form. This means that you do not need to involve the alleged offender at the beginning (though, it is always a good idea to have tried to resolve the matter with the offender before you commence proceedings).
  • You should prepare a statutory declaration(s) to lodge with your application to the Tribunal. The statutory declaration(s) should provide details about what has happened, what actions you have taken (such as contacting DPIPWE or reporting the incident to the Council) and any evidence of the extent of harm (such as photos). You should also provide evidence about the ownership of the land in question, such as a title deed or print out from the LIST.
  • After reading your application and any supporting documents, if the Tribunal is satisfied that there are sufficient grounds to proceed, it must issue a summons requiring the alleged offender. The summons will require the offender to appear before the Tribunal at a preliminary hearing to “show cause” (explain) why an order should not be made against them. The date for this hearing is usually within 14 days of the date on which you lodged your application, but can be sooner if the matter is urgent.

:!: In some circumstances, the Tribunal may also make temporary orders preventing particular actions until a final hearing has taken place (see below). If you think that temporary orders are necessary, you should request this in your application.

At the Preliminary Hearing

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

  • If s/he does not wish to show cause, the Tribunal can make an order relying on evidence already before it (that is, the evidence that you provided in your application).
  • If s/he does wish to show cause, the matter will be set down for hearing at a later date.
  • A date may also be set for a mediation conference to try to resolve the issue (for example, you may be able to reach agreement about reasonable operating hours for the neighbouring business, or getting the business to contribute to the costs of constructing a noise barrier)..

What can the Tribunal decide?

If the Tribunal is satisfied, on the balance of probabilities, that there has been a breach of the law (or if the alleged offender fails to respond to the summons or does not give evidence), the Tribunal may require him/her to comply with a wide range of orders:

Under Planning Law (LUPAA)

The Tribunal may make orders, including that the person:
  • stops contravening the Act or the permit
  • is prevented from carrying out any use or development on the relevant land
  • is prevented from carrying out particular uses on the land, either until the breach is fixed or for a set period of time
  • “makes good” (that is, repairs or remediates) the breach. Remediation must happen in a manner, and within a specified period, set by the Tribunal

:!: The Tribunal may also make a temporary order to stop any activity while the matter is being decided. Generally, a temporary order will not be made unless you are willing to give an undertaking to pay any damages the alleged offender may suffer due to the temporary order. For example, if you are seeking temporary orders to stop mining activities until your application is resolved, you may be required to give a commitment to pay compensation for any loss of revenue, payments to contractors or other penalties resulting from the shut-down if the mining company is ultimately found not to be in breach.
⇔ Click HERE for information about costs and damages.

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

Under Pollution Law (EMPCA)

The Tribunal can make a wide range of orders to stop pollution, including urgent orders if appropriate. For example, the Tribunal may require the offender to:
  • stop the harmful activity, or refrain from a course of action
  • repair damage that has been done
  • pay for repairs to be carried out by the government agency / council / affected person
  • comply with an Environment Protection Notice or enter into an Environmental Agreement or an Environmental Improvement Program (⇔ click HERE for more information about these options).
  • cease (or not commence) any use or development on the land in question
  • pay costs incurred to prevent or mitigate environmental harm, or to make good the resulting environmental damage

The Tribunal may also order the polluter to pay compensation to any person who has suffered loss or property damage. It may also order the polluter to pay your costs and expenses of taking action.

Can I appeal against the Tribunal decision?

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

:!: You cannot appeal against the merits of the decision, only upon a point of law. This means that you cannot challenge a Tribunal decision about, for example, who was to blame for the pollution event or what measures are appropriate to address the pollution, unless you can show that the Tribunal made a mistake in the way that it made its decision (such as failing to consider a relevant document).

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

☛ Go to Chapter 14 for more information about the Tribunal and other court processes.

Relevant laws

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