Environment (Amendment) Act 2010 (No. 6 of 2010)

No. (I of 2010. Environment (Amendment) Act 2010. c:il 7 .2· -rt1·. Certified on : 7 , 1 . v No. of 2010. Environment (Amendment) Act 2010. ARRANGEMENT OF SECTIONS. PART 1. - PRELIJVIINARY. 1. Compliance with Constitutional Requirements. 2. Interpretation. PART II. -AMENDMENTS TO THE ENVIRONMENT ACT2000. 3. Interpretation (Amendment of Section 2). 4. New Sections 69A and 69B. 5. NewSections87A-87E. No. of 2010 AN ACT entitled, Being an Act to amend the Environment Act 2000 to authorize the State to issue certificates certifying that certain conduct complies with environmental approvals, permits, leases, licences, consents or perm1ss10ns, MADE by the National Parliament. PART I. - PRELIMINARY. 1. COMPLIANCE WITH CONSTITUTIONAL REQUIREMENTS. ( 1) This Bill, to the extent that it regulates or restricts a right or freedom referred to in Subdivision III.C (qualified rights) of the Constitution, namely- (a) the right to freedom of employment confened by Section 48 of the Constitution; and (b) the right to privacy confened by Section 49 of the Constitution; and (c) the right to freedom of information conferred by Section 51 of the Constitution; and (cf) the right to freedom of movement confened by Section 52 of the Constitution, is a law that is made pursuant to Section 3 8 of the Constitution for the purpose of giving effect to - (e) the public interest in public order and public welfare, taking into account the National Goals and Directive Principles and the Basic Social Obligations, in particular the National Goals and Directive Principles entitled- (i) national sovereignty; and (ii) natural resources and environment; and (j) the right of the State under the Environment Act 2000 to regulate acts, works or activities that may harm or damage the environment through, but not limited to, notices, studies, directions, policies, environment permits and Regulations. (2) For the purposes of Section 53(1) and (2) of the Constitution:- (a) the purpose and reason for which this Act permits possession to be compulsorily to be taken of any property and permits any interest in or rights over property to be compulsorily acquired are declared and described to be a public purpose and a reason that is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind; and (b) this Act is expressed to be in the national interest. Environment (Amendment) (3) For the purposes of Sections 29 and 41 of the O1-ganic Law on Provincial Government and Local-level Government, and it is declared that this Act relates to a matter of national interest. PART II. -AMENDMENTS TO THE ENVIRONMENT ACT2000. 3. INTERPRETATION (AMENDMENT OF SECTION 2). (1) Section2 of the Principal Act is amended by inserting after the definition of"activity" the following new definition: - "Amendment Commencement Date" means the date of commencement of the Environment Act 2000;". (2) On the "Amendment Commencement Date", Section 2 of the Principal Act is amended: - (a) by inserting before the definition of"approval in principle" the following definition: "Authorisation Instrument" includes any approval, consent, lease, licence, permissiori, pennit or authorization issued or granted under the Environmental Planning Act (Chapter 370) and any Supplementary Approval;"; and (b) by inserting after the definition of "serious environmental harm" the following new definition: - •• • "Supplementary Approval" means any approval, consent, lease, licence, permission or · authorization or permit given in !'elation to an Authorisation Instrument including any variation, renewal, amendment, modification, transfer or extension thereof whenever made and by whatever statutory authority;". 4. NEW SECTIONS 69A AND 69B. The Principal Act is amended by inserting after Section 69 the following new sections: - "69A. DIRECTORMAY AUTHORISE ASSOCIATED ACTS. . (1) Notwithstanding anything in any other law in force at any time (whether before or after the commencement of this Act), the Director may, on behalf of the State, authorise the canying out of specific acts or works (including but not limited to those described under Section 41) relating or associated with an activity pe1mitted under an Authorisation Instrument if: (a) the Director is satisfied that the acts or works relate to or are associated with the canying on of a level 3 activity, or would not cause material harm to the environment; or (b) the acts or works have been allowed to be carried out in association with an identical or similar activity that is, or have been permitted under an • Authorization Instrument, Supplementary Approval or an environment permit ( whether or not granted to the same person and whether or not granted or issued prior to the commencement of this Act), which authorisation may be granted with retrospective effect. - 2 - Environment (Amendment) "(2) An authorization granted under Subsection (1) is deemed to be a permit granted under this Act and applies notwithstanding non-compliance with any procedural or other requirements for the grant of such permits under this Act. "(3) The Director's decision to grant an authorization is final and may not be challenged or reviewed in any court or tribunal.". "69B. ACTIVITY DOES NOT CONSTITUTE A CIVIL CAUSE OF ACTION OR AN OFFENCE. If the Director grants an authorization under Section 69A, the holder of the permit for the associated activity is entitled to carry out that act, or work and the carrying out of that act,' work or activity does not constitute a civil cause of action, whether in torts or otherwise, or an offence and is not unlawful.". 5. NEW SECTIONS 87 A - 87E. The Principal Act is amended by inserting after Section 87 the following new sections: - "87A. DIRECTOR MAY GRANT EXEMPTION CERTIFICATE. (1) The Director may, on behalf of the State, issue a Exemption Certificate declaring that an act, or a work or omission which was not in accordance with the tenns of an Authorisation Instrument (including Authorisation Instruments granted or issued prior to the commencement of this Act) is an "Exempt Operation", provided that the Director is satisfied that an act, a work or omission was carried out substantially in accordance with the tenns of that Authorisation Instrument. "(2) Subject to this section, in granting an Exemption certificate under Subsection (I), the Director is not bound by any provisions of any law requiring or permitting any authority, consent, approval, report, recommendation, appeal, procedure or formality, or by any similar provisions. "(3) An Exempt Operation shall be taken to have been authorized by the Authorisation Instrument to which it relates and an Exemption Certificate is conclusive evidence in any proceeding that an Exempt Operation was authorized by the Authorisation Instrument at the time at which it occurred. "(4) The Director's decision to issue the Exemption Certificate is final and may not be challenged or reviewed in any court or tribunal.". "87B. DIRECTOR MAY ISSUE BEST PRACTICE CERTIFICATE. (1) A holder of an Authorisation Instrument may apply to the Director to request a confirmation that certain methodology or conduct ( or proposed methodology or conduct) complies with best practice standards or requirements or best available standards or requirements ( whether engineering, environmental or otherwise) specified in an Authorisation Instrument. - 3- Environment (Amendment) "(2) Upon receiving an application refe1Ted to in Subsection (1 ), the Director may issue a Best Practice Certificate declaring that the methodology or conduct ( or proposed methodology or conduct) specified in the application complies or would comply with best practice standards or requirements or best available standards or requirements for the purposes of a particular Authorisation Instrument. "(3) Where an Authorisation Instrument refers to best practice standards or requirements or best available standards or requirements, a Best Practice Certificate issued in accordance with this section shall be conclusive evidence that the conduct or methodology specified in the Best Practice Certificate meets or would meet that standard or requirement in relation to the Authorisation Instrument specified in the Best Practice Certificate. "( 4) The Director's decision to issue the Best Practice Certificate is final and may not be challenged or reviewed in any comt or trib1mal, except at the instigation of any aggrieved holder of an Authorisation Instrument.". "87C. DIRECTOR MAY ISSUE A CERTIFICTE OF NECESSARY CONSEQUENCE. . . (1) A holder of an Authorisation Instrument may apply to the Director to request a confirmation of any or all of the following matters, namely, that: (a) the undertaking of certain conduct or proposed conduct referred to in the application is, was, or will be necessary or inevitable in order to carry out the work or activity that is authorized by the Authorisation Instrument; and (b) • the consequences referred to in the application in respect of that conduct or proposed .conduct or of the work or activity that is authorized by the Authorisation Instrument are, were or will be necessary or inevitable. consequences of undertaking that conduct, proposed conduct, work or activity. • "(2) Upon receiving an application referred to in Subsection (1 ), the Director may issue a Certificate of Necessary Consequence declaring ariy or all of the following matters, namely, that:- ( a) the lilldertaking of the conduct or proposed conduct referred to in the certificate is, was or will be necessary or inevitable in order to carry out the work or activity that is authorized by the Authorisation Instrument; and • (b) the consequences referred to in the ce1tificate in respect of that conduct, . proposed conduct, work or activity are, were or will be necessary or inevitable consequences of carrying out that conduct, proposed conduct, work or activity. "(3) A Certificate of Necessary Consequence issued in accordance with this section shall be conclusive evidence that: - 4 - Environment (Amendment) (a) the undertaking of the conduct or proposed conduct refened to in the certificate is, was or will be necessary or inevitable in order to cany out the work or activity that is authorized by the Authorisation Instrument; and (b) the consequences refened to in the certificate in the respect of that conduct, proposed conduct, work or activity are, were or will be necessary or inevitable consequences of canying out that conduct, proposed conduct, work or activity. "(4) The Director's decision to issue the Certificate ofNecessary Consequence is final and may not be challenged or reviewed or any court or tribunal, except all the instigation of an aggrieved holder of an Authorisation Instrument. "( 5) The carrying out of a conduct or proposed conduct, or the occuning of consequences, referred to in a Certificate of Necessary Consequence do not constitute wholly or partly a civil cause of action, whether in torts or otherwise, or an offence and are not unlawful.". "87D. A DIRECTOR MAY ISSUE A CERTIFICATE OF COMPLIANCE. (1) A holder of an Authorisation Instrument may apply to the Director for a Certificate of Compliance to certify that an act, a work or activity has been conducted in compliance with the Authorisation Instrument or Supplementary Approval or an environment permit and the carrying out of that act, work or activity does not constitute a civil cause of action, whether in torts or otherwise, or an offence and is not unlawful. "(2) Upon receiving an application referred to in Subsection (1), the Director may issue a Certificate of Compliance declaring that the act, work or activity has been conducted in compliance with the related Authorisation Instrument or Supplementary Approval or an environment permit and the carrying out of that act, work or activity does not constitute a civil cause of action, whether in torts or otherwise, or an offence and is not unlawful. "(3) A Certificate of Compliance issued in accordance with this section shall be conclusive evidence that the act, work or activity has been conducted in compliance with the related Authorisation Instrument or Supplementary Approval or an environment permit and no civil or other action may be brought or maintained in relation to that conduct. "(4) The Director's decision to issue a Certificate of Compliance is final any may not to challenged or reviewed in any court or tribunal, except at the instigation of an aggrieved holder of an Authorisation Instrument. "(5) The carrying out of any act, work or activity that is the subject of a Certificate of Compliance does not constitute wholly or partly a civil cause of action, whether in torts or otherwise, an offence and is not unlawful.". - 5 - E11viro11me11/ (Amendment) "87E. A HOLDER MAY APPLY l1OR MORE THAN ONE CERTIFICATE. A holder of an Authorisation Instrument may apply for the issue of, and the Director may issue, more than one certificate 11nder Sections 87 A to Section 87D in respect of one Autho;·isation Instrument.". I hereby certify that the above is a fair print of the Environment (Amendment) Act2010 which has been made by the National Arrliament. ll ll ,JIJ L 21n1J I hereby certify that the E11vii'om11e11t (Ame1tdmelll) Act 2010 was made ·by the Nation.al P,u-ljafu.ent on 28 May 201 Oby an absolute majority in accordance with the Co11stit11tio11. •