South Australia: Local Nuisance and Litter Control Act 2016 (SA)

South Australia Local Nuisance and Litter Control Act 2016 An Act to regulate local nuisance and littering; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation Part 2—Objects and application of Act 4 Objects of Act 5 Interaction with other Acts 6 Territorial and extra-territorial application of Act Part 3—Administration Division 1—Councils 7 Functions of councils 8 Annual reports by councils Division 2—Administering bodies 9 Administering bodies 10 Delegation 11 Periodic reports by administering bodies Division 3—Authorised officers 12 Authorised officers 13 Identity cards 14 Powers of authorised officers 15 Limit of area of authorised officers appointed by councils 16 Provisions relating to seizure Part 4—Offences Division 1—Local nuisance 17 Meaning of local nuisance 18 Causing local nuisance 19 Exemptions from application of section 18 20 Person must cease local nuisance if asked 21 Regulations for purposes of Division Division 2—Litter control 22 Disposing of litter 23 Bill posting 24 Litterer must remove litter if asked 25 Citizen's notification Division 3—Miscellaneous 26 Liability of vehicle owners 27 Defence of due diligence 28 Alternative finding 29 Notification to EPA of serious or material environmental harm Part 5—Nuisance abatement notices and litter abatement notices 30 Nuisance and litter abatement notices 31 Action on non‑compliance with notice 32 Appeals Part 6—Civil remedies and penalties 33 Civil remedies 34 Minister or council may recover civil penalty in respect of contravention Part 7—Miscellaneous 35 Constitution of the Environment, Resources and Development Court 36 Delegation by Minister 37 Service of notices or other documents 38 Immunity 39 Protection from liability 40 Statutory declarations 41 False or misleading information 42 Confidentiality 43 Offences 44 Offences and Environment, Resources and Development Court 45 Orders in respect of contraventions 46 Offences by bodies corporate 47 Continuing offences 48 Recovery of administrative and technical costs associated with contraventions 49 Assessment of reasonable costs and expenses 50 Evidentiary provisions 51 Regulations Schedule 1—Meaning of local nuisance (section 17) Part 1—Interpretation 1 Interpretation Part 2—Things that are local nuisance 2 Declared agents (section 17(1)(a)) 3 Unsightly conditions on premises (section 17(1)(c)) 4 Things declared to constitute local nuisance (section 17(1)(e)) Part 3—Things that are not local nuisance 5 Things that are not local nuisance Schedule 2—Transitional provisions Part 5—Transitional provisions 8 Continuation of by‑laws under section 240 of the Local Government Act 1999 relating to bill‑posting 9 Continuation of orders made under section 254 of the Local Government Act 1999 Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Local Nuisance and Litter Control Act 2016. 3—Interpretation In this Act, unless the contrary intention appears— amenity value of an area includes any quality or condition of the area that conduces to its enjoyment; authorised officer means a person appointed to be an authorised officer under section 12; class A hazardous litter—see section 22(5); class B hazardous litter—see section 22(5); council means a council within the meaning of the Local Government Act 1999; environment protection policy has the same meaning as in the Environment Protection Act 1993; function includes a power or duty; general litter—see section 22(5); LGA means the Local Government Association of South Australia; litter—see section 22(5); litter abatement notice—see section 30; local nuisance—see section 17; nuisance abatement notice—see section 30; owner— (a) in relation to a vessel, has the same meaning as in the Harbors and Navigation Act 1993, and includes the operator of the vessel within the meaning of that Act; (b) in relation to a vehicle within the meaning of the Road Traffic Act 1961, has the same meaning as in section 5(1) of the Road Traffic Act 1961, and includes the operator of the vehicle within the meaning of that Act; premises means— (a) any land, building (including residential premises) or place (including a public place, or a movable building or structure); or (b) a part of premises; prescribed activity of environmental significance has the same meaning as in the Environment Protection Act 1993; public place has the same meaning as in the Road Traffic Act 1961; relevant council, in relation to the commission (or alleged commission) of an offence under this Act, means the council for the area in which the commission (or alleged commission) of the offence occurred; road has the same meaning as in the Road Traffic Act 1961; road-related area has the same meaning as in the Road Traffic Act 1961; vehicle includes— (a) a vessel; and (b) a vehicle within the meaning of the Road Traffic Act 1961; vessel has the same meaning as in the Harbors and Navigation Act 1993. Part 2—Objects and application of Act 4—Objects of Act (1) The objects of the Act are— (a) to protect individuals and communities from local nuisance; and (b) to prevent littering; and (c) to improve the amenity value of local areas; and (d) to promote the creation and maintenance of a clean and healthy environment. (2) The Minister, councils and other persons or bodies involved in the administration of this Act must have regard to, and seek to further, the objects of this Act. 5—Interaction with other Acts (1) Except as specifically provided by this Act, the provisions of this Act are in addition to, and do not limit, the provisions of any other law of the State. (2) Without limiting the generality of subsection (1), this Act is not intended to be construed so as to prevent any person from being prosecuted under any other enactment for an offence that is also punishable by this Act, or from being liable under any other law of the State to any penalty or punishment that is higher than a penalty or punishment provided by this Act. (3) Nothing in this Act affects or limits a right or remedy that exists apart from this Act and compliance with this Act does not necessarily indicate that a common law duty of care has been satisfied. (4) Subject to subsection (5), this Act does not apply in relation to an activity authorised by an environmental authorisation within the meaning of the Environment Protection Act 1993. (5) This Act applies in relation to the use of a road or road-related area by a vehicle for the purposes of, or in connection with, the following prescribed activities of environmental significance: (a) a waste transport business (category A); (b) a waste transport business (category B); (c) dredging; (d) earthworks drainage. 6—Territorial and extra-territorial application of Act (1) If— (a) a person causes local nuisance within the State by an activity carried on outside the State; and (b) the activity would, if carried on within the State, constitute a contravention of this Act, the person is liable to a penalty in respect of the contravention as if the activity were carried on by the person within the State. (2) For the purposes of this section, a reference to carrying on an activity includes a reference to a failure to act. Part 3—Administration Division 1—Councils 7—Functions of councils (1) Subject to this Act, a council is the principal authority for dealing with local nuisance and littering in its area. (2) In connection with subsection (1), the following functions are conferred on a council by this Act: (a) to take action to manage local nuisance and littering within its area; (b) to cooperate with any other person or body involved in the administration of this Act; (c) to provide, or support the provision of, educational information within its area to help detect, prevent and manage local nuisance and littering; (d) such other functions as are assigned to the council by this Act. (3) A council must, in performing its functions under this Act, have regard to— (a) the guidelines adopted or prescribed by regulation for managing unreasonable complainant conduct; and (b) any other guidelines adopted or prescribed by regulation to assist councils in performing their functions. 8—Annual reports by councils A council must, in its annual report prepared pursuant to section 131 of the Local Government Act 1999 in relation to a particular financial year, include details of the performance by the council during that year of functions conferred on it under this Act. Division 2—Administering bodies 9—Administering bodies (1) The Governor may make regulations declaring a body to be an administering body for the purposes of the administration or enforcement of this Act either generally or in specified locations or subject to specified conditions. (2) The regulations may— (a) provide that this Act or specified provisions of this Act will apply (subject to such conditions, modifications or requirements as may be prescribed by the regulations) in order to confer functions or rights on— (i) an administering body as if it were a council (including a relevant council); or (ii) officers or employees of the administering body as if they were authorised officers of a council; and (b) provide that any fines, penalties or forfeitures recovered in proceedings commenced by an administering body before a court for an offence against this Act must be paid to the administering body. (3) The conferral under this section of a function on an administering body or its officers or employees is not, unless the contrary intention is specified in the regulations, to be taken to limit or affect the performance of that function by the Minister, a council or an authorised officer. 10—Delegation (1) An administering body, may, by instrument executed by the administering body, delegate a function conferred on the administering body under this Division to— (a) a committee of the administering body; or (b) an officer or employee of the administering body; or (c) an officer or employee of the administering body for the time being occupying a particular office or position. (2) A delegation under this section may be given subject to conditions specified in the instrument of delegation. (3) A delegation under this section is revocable at will and does not prevent the administering body from acting in any matter. 11—Periodic reports by administering bodies (1) An administering body must report to the Minister, at such intervals as the Minister requires, on the performance by the body of functions conferred on the body under this Division. (2) The Minister must, within 6 sitting days after receiving a report under subsection (1), cause copies of the report to be laid before both Houses of Parliament. Division 3—Authorised officers 12—Authorised officers (1) All police officers are authorised officers for the purposes of this Act. (2) The Minister may appoint persons to be authorised officers for the purposes of this Act. (3) A council may appoint— (a) specified officers or employees of the council; or (b) a specified class of officers or employees of the council, to be authorised officers for the purposes of this Act. (4) An appointment— (a) may be made subject to conditions specified in the instrument of appointment; and (b) is, in the case of an appointment by a council or other appointment of a prescribed class, subject to conditions prescribed by regulation. (5) A person may hold an appointment as an authorised officer from more than 1 council. (6) The Minister or a council that has made an appointment under this section may, at any time, revoke the appointment, or vary or revoke a condition specified in the instrument of such an appointment or impose a further such condition. 13—Identity cards (1) An authorised officer is not required to be issued with an identity card in the following circumstances: (a) if the authorised officer is a police officer; (b) if the authorised officer is appointed by a council and the Minister has designated a card issued to such an authorised officer by the council as an identity card for the purposes of this Act. (2) In any other circumstances, an authorised officer appointed under this Act must be issued with an identity card in a form approved by the Minister— (a) containing the person's name and a recent photograph of the person; and (b) stating that the person is an authorised officer for the purposes of this Act; and (c) specifying the name or office of the issuing authority. (3) The identity card must be issued as soon as is reasonably practicable after the appointment is made (but an authorised officer is not prevented from exercising powers under this Act just because an identity card is yet to be issued). (4) An authorised officer must, at the request of a person in relation to whom the officer intends to exercise any powers under this Act, produce for the inspection of the person his or her identity card (unless the identity card is yet to be issued). 14—Powers of authorised officers (1) An authorised officer may, for any purpose connected with the administration or enforcement of this Act or with the performance, exercise or discharge of a function under this Act— (a) at any reasonable time, enter or inspect any premises or vehicle; and (b) during the course of the inspection of any premises or vehicle— (i) ask questions of any person found in or on the premises or vehicle; and (ii) open a part of, or thing in or on, the premises or vehicle; and (iii) inspect any substance, material or thing found in or on the premises or vehicle; and (iv) take and remove samples of any substance, material or thing found in or on the premises or vehicle; and (v) require any person to produce any plans, specifications, books, papers or documents; and (vi) examine, copy and take extracts from any plans, specifications, books, papers or documents; and (vii) take photographs, films or video recordings; and (viii) take measurements, make notes and carry out tests; and (ix) remove, or seize and retain, any substance, material or thing that has or may have been used in, or may constitute evidence of, a contravention of this Act; and (c) require a person who the authorised officer reasonably suspects has committed, is committing or is about to commit, an offence against this Act, to state the person's full name and usual place of residence and to produce evidence of the person's identity; and (d) require any person to answer any question that may be relevant to the administration or enforcement of this Act; and (e) give directions as to the stopping or movement of a vehicle; and (f) give any other directions reasonably required in connection with the exercise of a power conferred by any of the paragraphs above or otherwise in connection with the administration or enforcement of this Act. (2) In the exercise of powers under this Act, an authorised officer may be accompanied by such assistants as may be necessary or desirable in the circumstances. (3) An authorised officer may only use reasonable force— (a) to enter any premises or vehicle; or (b) to open a part of, or thing in, the premises or vehicle, on the authority of a warrant issued by a magistrate or a justice. (4) However— (a) an application for a warrant under subsection (3) cannot be made to a justice who is a member, officer or employee of a council; and (b) a magistrate or justice must not issue a warrant under subsection (3) unless satisfied— (i) that there are reasonable grounds to suspect that an offence against this Act has been, is being, or is about to be, committed; or (ii) that the warrant is reasonably required in the circumstances. (5) If an authorised officer is inspecting premises or a vehicle under this section, the person in charge of the premises or vehicle must provide such assistance as the authorised officer reasonably requires to facilitate the inspection. (6) A person who— (a) hinders or obstructs an authorised officer, or a person assisting an authorised officer, in the exercise of a power under this Act; or (b) uses abusive, threatening or insulting language to an authorised officer, or a person assisting an authorised officer, in the exercise of a power under this Act; or (c) refuses or fails to comply with a requirement or direction of an authorised officer under this Act; or (d) having been asked a question under this section, does not answer the question to the best of his or her knowledge, information and belief; or (e) falsely represents, by words or conduct, that he or she is an authorised officer or other person with powers under this Act, is guilty of an offence. Maximum penalty: $10 000. (7) It is not an excuse for a person to refuse or fail to furnish information under this section on the ground that to do so might tend to incriminate the person or make the person liable to a penalty. (8) However, if compliance with a requirement to furnish information might tend to incriminate a person or make a person liable to a penalty, then— (a) in the case of a person who is required to produce, or provide a copy of, a document or information—the fact of production, or provision of, the document or the information (as distinct from the contents of the documents or the information); or (b) in any other case—any answer given in compliance with the requirement, is not admissible in evidence against the person for an offence or for the imposition of a penalty (other than proceedings in respect of the provision of information that is false or misleading). (9) An authorised officer, or a person assisting an authorised officer, who— (a) addresses offensive language to any other person; or (b) without lawful authority hinders or obstructs or uses or threatens to use force in relation to any other person, is guilty of an offence. Maximum penalty: $10 000. 15—Limit of area of authorised officers appointed by councils An authorised officer appointed by a council may, subject to any conditions of his or her appointment, exercise powers under this Act outside of the council area in the following circumstances: (a) subject to paragraph (b), if the powers are to be exercised in another council area—to the extent agreed to, in writing, by the other council; (b) if the authorised officer believes on reasonable grounds that an offence under this Act has been committed within the council area that requires the exercise of powers outside the council area (including within the area of another council or outside the State). 16—Provisions relating to seizure (1) If a substance, material or thing has been seized under this Division, the following provisions apply: (a) the substance, material or thing seized must be held pending proceedings for an offence against this Act unless the Minister or relevant council (as the case may require), on application, authorises its release to the person from whom it was seized, or to any person who had legal title to it at the time of its seizure, subject to such conditions as the Minister or council thinks fit; (b) if— (i) proceedings are not instituted for an offence against this Act in relation to the substance, material or thing within the prescribed period after its seizure; or (ii) after proceedings have been so instituted and the defendant is not found guilty or convicted of the offence, the person from whom it was seized is entitled to recover the substance, material or thing or, if it has been destroyed, compensation equal to the market value of the substance, material or thing at the time of its seizure; (c) an action for the payment of compensation may be brought in any court of competent jurisdiction; (d) the court by which a person is convicted or found guilty of an offence against this Act in relation to the substance, material or thing may, if the proceedings were instituted within the prescribed period after its seizure, order— (i) that the substance, material or thing be forfeited to the Minister or relevant council; or (ii) if the substance, material or thing has been released pursuant to paragraph (a)—that the person to whom it was released or the defendant pay to the Minister or relevant council (as the case may require) an amount equal to its market value at the time of its seizure as the court thinks fit; (e) if a person is, under this section, entitled to recover any substance, material or thing, but the person— (i) fails to do so within 6 months after having been requested to do so by the Minister or relevant council; or (ii) cannot be located within 6 months after reasonable attempts by the Minister or relevant council to do so, the substance, material or thing is, by force of this section, forfeited to the Minister or council; (f) any substance, material or thing forfeited under this section must be disposed of in such manner as the Minister or relevant council (as the case may require) may direct; (g) if the substance, material or thing is sold, the proceeds of the sale must— (i) if the sale was directed by the Minister—be paid into the Consolidated Account; or (ii) if the sale was directed by the relevant council—be paid to that council. (2) For the avoidance of doubt, this section does not apply in relation to a substance, material or thing— (a) removed or disposed of by or on behalf of the Minister or a council under section 31 (following non-compliance with the requirements of a nuisance abatement notice or litter abatement notice); or (b) removed or disposed of by a council under section 234 of the Local Government Act 1999; or (c) collected by a council under section 297 of the Local Government Act 1999. (3) In this section— prescribed period means 6 months (or such longer period as the Environment, Resources and Development Court may, on application by the Minister or relevant council, allow). Part 4—Offences Division 1—Local nuisance 17—Meaning of local nuisance (1) For the purposes of this Act, local nuisance is— (a) any adverse effect on an amenity value of an area that— (i) is caused by— (A) noise, odour, smoke, fumes, aerosols or dust; or (B) animals, whether dead or alive; or (C) any other agent or class of agent declared by Schedule 1; and (ii) unreasonably interferes with or is likely to interfere unreasonably with the enjoyment of the area by persons occupying a place within, or lawfully resorting to, the area; or (b) insanitary conditions on premises that unreasonably interfere with or are likely to interfere unreasonably with the enjoyment of premises occupied by persons in the vicinity; or (c) unsightly conditions, of a kind declared by Schedule 1, on premises caused by human activity or a failure to act; or (d) a contravention of, or failure to comply with a provision of an environment protection policy, or of any other Act or law, declared by Schedule 1; or (e) anything declared by Schedule 1 to constitute local nuisance, but does not include anything declared by Schedule 1 not to constitute local nuisance. Note— Schedule 1 may be added to or amended by regulation—see section 51(2)(a) and (b). (2) For the purposes of subsection (1)(b), conditions on premises will be taken to be insanitary if an authorised officer reasonably believes that— (a) the premises are so filthy or neglected that there is a risk of infestation by rodents or other pests; or (b) offensive material or odours are emitted from the premises. (3) In this section— animals includes insects. 18—Causing local nuisance (1) A person who carries on an activity intentionally or recklessly and with the knowledge that local nuisance will result is guilty of an offence. Maximum penalty: (a) in the case of a body corporate—$60 000; (b) in the case of a natural person—$30 000. (2) A person who carries on an activity that results in local nuisance is guilty of an offence. Maximum penalty: (a) in the case of a body corporate—$20 000; (b) in the case of a natural person—$10 000. Expiation fee: $500. (3) For the purposes of this section— (a) the occupier or person in charge of a place at or from which the activity that results in local nuisance is carried on will be taken to have carried on the activity (but without affecting the liability of any other person in respect of the activity); (b) a reference to carrying on an activity includes a reference to a failure to act. Note— If the activity occurs in, at or from a vehicle or in connection with the use of a vehicle, the owner of the vehicle is, under section 26, taken to have committed an offence. 19—Exemptions from application of section 18 (1) A person will be exempt from the application of section 18 in respect of a specified activity if the council for the area in which the activity is to be carried on declares, by notice in writing, in accordance with this section, that the person is so exempt. Examples— The following are examples of activities for which an exemption may be declared: (a) construction or demolition works; (b) concerts or events; (c) activities using amplified sound. (2) An application for a declaration under this section must be made to a council in the manner and form prescribed by regulation and must be accompanied by— (a) a site nuisance management plan containing the details prescribed by regulation; and (b) any other information in connection with the application that the council may require; and (c) a fee of an amount fixed by regulation. (3) A council must not make a declaration under this section unless it is satisfied that— (a) there are exceptional circumstances that justify the making of the declaration; and (b) the applicant's nuisance management plan adequately sets out the measures that the person will take to prevent, minimise or address any anticipated adverse effects from the specified activity on the amenity value of the area concerned. (4) A declaration may be unconditional or subject to conditions, including (but not limited to) conditions relating to— (a) the permitted times or periods of time for carrying on the activity; or (b) the manner of carrying on the activity. (5) The council may, by further notice in writing, vary or revoke a declaration under this section. (6) A declaration under this section has effect from the date specified in the declaration and remains in force according to its terms for a period not exceeding 3 months specified in the declaration or until revoked by the council. (7) A council must publish a declaration made under this section, and any variations of the declaration, on a website determined by the council. 20—Person must cease local nuisance if asked A person must, on request by an authorised officer, cease an activity, or remove from premises owned or occupied by the person any substance, material or thing that, in the opinion of the authorised officer, is causing local nuisance. Maximum penalty: $5 000. Expiation fee: $210. 21—Regulations for purposes of Division Regulations may be made for the purposes of this Division and may, without limitation— (a) prohibit, restrict or regulate an activity, or the use or sale of a substance, material or thing, or the use or installation of equipment or infrastructure relevant to the prevention or management of local nuisance; and (b) prohibit, restrict or regulate the manufacture, possession, transport, storage, use or disposal of a substance, material, equipment or thing that causes local nuisance; and (c) provide for the removal or destruction of a substance, material, equipment or thing that causes local nuisance; and (d) provide for compliance standards, and testing or monitoring standards, procedures or techniques (including sensory techniques), to be applied or used by authorised officers in detecting or identifying local nuisance; and (e) provide for the taking, analysis or testing of samples relevant to detecting, identifying or monitoring local nuisance including— (i) the persons who may take, analyse or test those samples; and (ii) the places where those samples may be analysed or tested; and (iii) the reporting of the results of the analysis or testing of those samples. Division 2—Litter control 22—Disposing of litter (1) A person must not dispose of litter onto any land or into any waters. Maximum penalty: (a) for an offence involving the disposal of any amount of class A hazardous litter— (i) in the case of a body corporate—$250 000; (ii) in the case of a natural person—$120 000 or imprisonment for 2 years; (b) for an offence involving the disposal of 50 litres or more of class B hazardous litter or general litter— (i) in the case of a body corporate—$60 000; (ii) in the case of a natural person—$30 000 or imprisonment for 6 months; (c) for an offence involving the disposal of up to 50 litres of class B hazardous litter—$10 000; (d) for an offence involving the disposal of up to 50 litres of general litter—$5 000. Expiation fee: (a) for an offence involving the disposal of 50 litres or more of class B hazardous litter or general litter—$1 000; (b) for an offence involving the disposal of up to 50 litres of class B hazardous litter—$500; (c) for an offence involving the disposal of up to 50 litres of general litter—$210. (2) For the purposes of subsection (1)— (a) if litter is discarded, deposited, blows or falls from premises or a vehicle onto land or into waters, it is taken to have been disposed of onto the land or into the waters; and (b) a person will be taken to have disposed of litter onto land or into waters if the person caused or allowed the litter to be disposed of onto the land or into the waters; and (c) the occupier or person in charge of a place from which litter is discarded or deposited or blows or falls will be taken to have disposed of the litter (but without affecting the liability of any other person in respect of the disposal). Note— If the disposal of litter occurs from a vehicle or in connection with the use of a vehicle, the owner of the vehicle is, under section 26, taken to have committed an offence. (3) However, subsection (1) does not apply to the disposal of litter— (a) in a council area— (i) in a bin or other receptacle provided by the council for litter of that kind; or (ii) in some other manner approved or authorised by the council; or (b) at a depot, facility or works of a kind described in Schedule 1 Part A clause 3 of the Environment Protection Act 1993 at which such material is received; or (c) if the litter consists of a vehicle to which sections 236 and 237 of the Local Government Act 1999 apply; or (d) in accordance with an approval, consent, licence, permit, exemption or other authorisation or entitlement granted by a council or granted under any Act or law of this State or the Commonwealth. (4) In any proceedings where it is alleged that a person contravened subsection (1), it will be a defence if it is proved that— (a) the litter was disposed of on that person's property or on some other person's property with that other person's consent; or (b) the disposal was accidental and the person has, as soon as becoming aware of the disposal, taken all reasonable steps to retrieve the litter. (5) In this section, unless the contrary intention appears— class A hazardous litter means domestic or commercial waste comprised of— (a) asbestos; (b) material containing asbestos; (c) any substance, material or thing of a kind prescribed by regulation; (d) a combination of litter referred to in a preceding paragraph of this definition and any other litter; class B hazardous litter means— (a) when disposed of onto land or into waters— (i) live cigarettes or cigarette butts; (ii) used syringes; (iii) waste glass (whether or not broken); (iv) any substance, material or thing of a kind prescribed by regulation; (v) a combination of litter referred to in a preceding paragraph of this definition and general litter; (b) when disposed of into waters—any disused or decommissioned vehicle, appliance or device or part of such a vehicle, appliance or device or any other structure or thing that an authorised officer reasonably suspects is being used, or is intended for use, in the waters as an artificial reef; general litter means any solid or liquid domestic or commercial waste, and includes, without limitation— (a) cigarettes or cigarette butts; (b) chewing gum; (c) food or food scraps; (d) beverage containers; (e) packaging; (f) clothing, footwear or other personal accessories or personal items; (g) furniture; (h) garden cuttings or clippings or other plant matter; (i) garden landscaping material; (j) dead or diseased animals; (k) vehicles or vehicle parts; (l) machinery or equipment used in farming or agriculture; (m) demolition material (including, but not limited to, clay, concrete, rock, sand, soil or other inert mineralogical matter); (n) building or construction material or equipment; (o) any material or thing used or generated in the course of carrying on a prescribed activity of environmental significance; (p) any substance, material or thing of a kind prescribed by regulation, but does not include hazardous litter; hazardous litter means class A hazardous litter or class B hazardous litter; litter means general litter or hazardous litter; surface waters means— (a) marine waters within the meaning of the Environment Protection Act 1993; and (b) naturally occurring inland waters; and (c) artificially created bodies of water or streams that are for public use or enjoyment; waste has the same meaning as in the Environment Protection Act 1993; waters means surface waters or underground waters. 23—Bill posting (1) A person must not post a bill on property without the consent of the owner or occupier of the property. Maximum penalty: $10 000. Expiation fee: $315. (2) If a bill is posted on property in contravention of subsection (1), a person who distributed or authorised the distribution of the bill for posting is guilty of an offence. Maximum penalty: (a) in the case of a body corporate—$20 000; (b) in the case of a natural person—$10 000. (3) In any proceedings where it is alleged that a person contravened subsection (2), it will be a defence if it is proved that the person did not foresee and could not reasonably be expected to have foreseen the likelihood that such bills would be posted without consent. (4) If a person is convicted of an offence against subsection (1) or (2), the court may order the offender to pay to the owner or occupier of the relevant property such compensation for loss or damage caused to the property by the commission of the offence as the court considers just. (5) In this section— bill includes a flyer, brochure or poster containing promotional material, and includes anything declared by regulation to be a bill, but does not include anything declared by regulation not to be a bill. 24—Litterer must remove litter if asked A person must, on request by an authorised officer, remove a bill posted on property, or any other litter disposed of, by that person in contravention of this Division and dispose of it as directed by the authorised officer. Maximum penalty: $5 000. Expiation fee: $210. 25—Citizen's notification (1) A person who reasonably suspects another person of having committed an offence against this Division may notify the Minister or the relevant council of that suspicion by forwarding a report (a citizen's notification) to the Minister or the council in the form (which may be electronic), and containing the details (which may include images), prescribed by regulation. (2) In any proceedings, a citizen's notification constitutes evidence of the matters contained in that notification. Division 3—Miscellaneous 26—Liability of vehicle owners (1) Subject to this Part, if— (a) an activity is carried on— (i) in, at or from a vehicle; or (ii) in connection with the use of a vehicle; and (b) the activity results in an offence against section 18, 22 or 23 (a principal offence), the owner of the vehicle is guilty of an offence against this section and is liable to the same penalty as is prescribed for the principal offence and the expiation fee (if any) that is fixed for the principal offence also applies in relation to the offence against this section. (2) The owner of a vehicle and the person who committed the principal offence (the alleged principal offender) are not both liable through the operation of this section to be found guilty of, or to expiate, an offence arising out of the same circumstances, and consequently a finding of guilt in relation to, or expiation by, the owner exonerates the alleged principal offender and conversely a finding of guilt in relation to, or expiation by, the alleged principal offender exonerates the owner. (3) An expiation notice or expiation reminder notice given under the Expiation of Offences Act 1996 to the owner of a vehicle for an alleged offence against this section involving the vehicle must be accompanied by a notice inviting the owner, if he or she was not the alleged principal offender, to provide the council or officer specified in the notice, within the period specified in the notice, with a statutory declaration— (a) setting out the name and address of the person who the owner believes to have been the alleged principal offender; or (b) if he or she had transferred ownership of the vehicle to another prior to the time of the alleged principal offence and has complied with the Motor Vehicles Act 1959 or the Harbors and Navigation Act 1993 (as the case may require) in respect of the transfer—setting out details of the transfer (including the name and address of the transferee). (4) If the vehicle is owned by 2 or more persons— (a) a prosecution for an offence against this section may be brought against 1 of the owners or against some or all of the owners jointly as co-defendants; and (b) if the case for the prosecution is proved and a defence is not established, the defendant or each of the defendants who does not establish a defence is liable to be found guilty of an offence against this section. (5) Before proceedings are commenced against the owner of a vehicle for an offence against this section, the complainant must send the owner a notice— (a) setting out particulars of the alleged principal offence; and (b) inviting the owner, if he or she was not the alleged principal offender or the owner of the vehicle at the time of the alleged principal offence, to provide the complainant, within 21 days of the date of the notice, with a statutory declaration setting out any matters referred to in subsection (3)(a) or (b). (6) Subsection (5) does not apply to— (a) proceedings commenced where an owner has elected under the Expiation of Offences Act 1996 to be prosecuted for the offence; or (b) proceedings commenced against an owner of a vehicle who has been named in a statutory declaration under this section as the alleged principal offender. (7) Subject to subsection (8), in proceedings against the owner of a vehicle for an offence against this section, it is a defence to prove— (a) that, in consequence of some unlawful act, the vehicle was not in the possession or control of the owner at the time of commission of the alleged principal offence; or (b) that the owner provided the complainant with a statutory declaration in accordance with an invitation under this section. (8) The defence in subsection (7)(b) does not apply if it is proved that the owner made the declaration knowing it to be false in a material particular. (9) If— (a) an expiation notice is given to a person named as the alleged principal offender in a statutory declaration under this section; or (b) proceedings are commenced against such a person, the notice or summons, as the case may be, must be accompanied by a notice setting out particulars of the statutory declaration that named the person as the alleged principal offender. (10) The particulars of the statutory declaration provided to the alleged principal offender must not include the address of the person who provided the statutory declaration. (11) In proceedings against a person named in a statutory declaration under this section for the offence to which the declaration relates, it will be presumed, in the absence of proof to the contrary, that the person was present in or at the vehicle at the time at which the alleged principal offence was committed. (12) In proceedings against the owner of a vehicle or the alleged principal offender for an offence under this Part, an allegation in the complaint that a notice was given under this section on a specified day will be accepted as proof, in the absence of proof to the contrary, of the facts alleged. (13) For the purposes of subsection (1), an activity comprised of the disposal of a substance, material or thing onto land or into waters that results in an offence against this Act will be presumed, in the absence of proof to the contrary, to have been carried on in connection with the use of a vehicle if the substance, material or thing has been disposed of onto land or into waters and the vehicle was seen arriving at that place before the disposal or leaving the place after the disposal. (14) This section does not apply in the case of a principal offence against section 22 if— (a) the vehicle from which the litter was disposed of is— (i) a taxi; or (ii) a train, tram, bus, ferry, passenger ship, or other public transport vehicle that was being used for a public purpose at the time; and (b) the litter was disposed of by a passenger of the vehicle. 27—Defence of due diligence (1) In any proceedings against a person for an offence under section 18 or 22, it is a defence to prove that the person took all reasonable precautions and exercised all due diligence to prevent the commission of the offence. (2) Without limiting subsection (1), in the case of an offence committed or allegedly committed by a person in the course of undertaking a prescribed activity of environmental significance (to the extent referred to in section 5(5)), it is not proved that the person took all reasonable precautions and exercised all due diligence to prevent the commission of the offence unless it is proved that the person— (a) had taken reasonable steps to prevent or avoid the circumstances that gave rise to the offence including by putting in place any systems or safeguards that might reasonably be expected to be in place; and (b) complied with the requirements of any notice under this Act that related to preventing or managing the circumstances that gave rise to the offence; and (c) as soon as becoming aware of the circumstances that gave rise to the offence— (i) reported those circumstances to the Minister or the relevant council; and (ii) took all reasonable steps necessary to prevent or reduce those circumstances. (3) A person who would, but for the defence provided by this section, have contravened section 18 or 22 is, despite that defence, to be taken to have contravened that provision for the purposes of— (a) any proceedings under section 33 in respect of the contravention; and (b) the issuing or enforcement of a nuisance abatement notice or litter abatement notice in respect of the contravention; and (c) the making by a court of an order under section 45 in proceedings for an offence in respect of the contravention. (4) This section does not apply in relation to a person who is charged with an offence under section 46. 28—Alternative finding If, in proceedings for an offence against this Part, the court is not satisfied that the defendant is guilty of the offence charged but is satisfied that the defendant is guilty of an offence against this Part that carries a lower maximum penalty (determined according to relative maximum monetary penalties), the court may find the defendant guilty of the latter offence. 29—Notification to EPA of serious or material environmental harm If a council has reason to believe that an offence committed under section 18 or 22 has, or may have, resulted in material environmental harm, or serious environmental harm, within the meaning of the Environment Protection Act 1993, the council must, as soon as practicable, notify the Environment Protection Authority of that belief. Part 5—Nuisance abatement notices and litter abatement notices 30—Nuisance and litter abatement notices (1) The Minister or a relevant council may issue— (a) a nuisance abatement notice for or in connection with securing compliance with Part 4 Division 1; or (b) a litter abatement notice for or in connection with securing compliance with Part 4 Division 2. (2) A notice under this section— (a) must be in the form of a written notice served on the person to whom it is issued; and (b) must specify the person to whom it is issued (by name or by a description sufficient to identify the person); and (c) must specify the purpose for which it is issued; and (d) may direct 2 or more persons to do something specified in the notice jointly; and (e) may impose a requirement that the person do 1 or more of the following: (i) discontinue, or not commence, a specified activity indefinitely or for a specified period or until further notice; (ii) not carry on a specified activity except at specified times or subject to specified conditions; (iii) take specified samples or conduct specified tests, examinations, monitoring or analyses at specified times or intervals or for a specified period or until further notice; (iv) furnish to the Minister or council specified results or reports within a specified period; (v) clean up litter that the Minister or council considers to have been caused by a contravention of this Act; (vi) make good any damage to property that the Minister or council considers to have been caused by a contravention of this Act; (vii) prepare, in accordance with specified requirements and to the satisfaction of the Minister or council, a plan of action for the purposes of securing compliance with any requirement of this Act or preventing any future contravention of this Act; (viii) take such other specified action in a specified way, and within a specified period or at specified times or in specified circumstances; and (f) may, in addition, in the case of a litter abatement notice, impose a requirement that the person prepare, in accordance with specified requirements and to the satisfaction of the Minister or council, a plan of action for the purposes of— (i) preventing the escape of litter from business premises; or (ii) keeping a specified area (not exceeding 100 metres) around business premises free from litter; and (g) may impose any other requirement prescribed by regulation; and (h) must state that the person may, within 14 days, appeal against the notice to the Environment, Resources and Development Court. (3) A notice under this section may be issued to a person by 2 or more councils jointly to prevent the person contravening a provision of this Act in those council areas. (4) A notice under this section that relates to an activity or conditions on premises may be issued to— (a) the owner or occupier of the premises; or (b) a person who has the management or control of the premises; or (c) a person who is the trustee of a person referred to in paragraph (a) or (b), or is managing the affairs of such a person on some other basis. (5) An authorised officer may, if of the opinion that urgent action is required, issue an emergency notice imposing a requirement of a kind referred to in subsection (2)(e) or (3) or as reasonably required in the circumstances. (6) An emergency notice may be issued orally, but, in that event, the person to whom the notice is issued must be advised forthwith of the person's right to appeal against the notice to the Environment, Resources and Development Court. (7) If an emergency notice is issued to a person by an authorised officer, the notice will cease to have effect on the expiration of 3 business days from the time of its issue unless confirmed by a notice issued by the Minister or council and served on the person. (8) The Minister or a council may, by written notice served on a person to whom a notice under this section has been issued by the Minister or council, vary or revoke the notice. (9) A person to whom a notice is issued under this section must not, without reasonable excuse, fail to comply with the notice. Maximum penalty: (a) in the case of a body corporate—$60 000; (b) in the case of a natural person—$30 000. Expiation fee: $500. (10) A person must not hinder or obstruct a person complying with a notice under this section. Maximum penalty: $25 000. 31—Action on non‑compliance with notice (1) If the requirements of a nuisance abatement notice or litter abatement notice issued by the Minister or a council are not complied with, the Minister or council may take any action required by the notice. (2) Action to be taken under subsection (1) may be taken on behalf of the Minister or council by an authorised officer or another person authorised by the Minister or council for the purpose. (3) If a person other than an authorised officer is authorised to take action under subsection (2), the following provisions apply: (a) the Minister or council must issue the person with an instrument of authority; (b) the person may exercise such powers of an authorised officer as are reasonably required for the purpose of taking action under that subsection; (c) the provisions of this Act apply in relation to the exercise of such powers by the person in the same way as in relation to an authorised officer; (d) the person must produce the instrument of authority for the inspection of any person in relation to whom the person intends to exercise powers of an authorised officer. (4) A person taking action under this section may enter any relevant premises or vehicle at any reasonable time. (5) The reasonable costs and expenses incurred by the Minister or a council in taking action under this section may be recovered by the Minister or council as a debt from the person who failed to comply with the requirements of the notice. (6) If an amount is recoverable from a person under this section, the Minister or council may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person, and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the prescribed rate per annum on the amount unpaid. (7) In addition, if an amount recoverable under this section relates to action taken in relation to any land owned by the person to whom the notice was issued (including a building or other structure on such land), the amount will be a charge on the land in favour of the Minister or council in accordance with a scheme prescribed by the regulations (with a priority determined in accordance with the regulations). 32—Appeals (1) A person who has been issued with a nuisance abatement notice or litter abatement notice may appeal to the Environment, Resources and Development Court against the notice. (2) An appeal— (a) must be instituted within 14 days after the notice is served on the person (or such longer period as the Court allows); and (b) must be made in a manner and form determined by the Court, setting out the grounds of the appeal. (3) An appeal must be referred in the first instance to a conference under section 16 of the Environment, Resources and Development Court Act 1993 (and the provisions of that Act will then apply in relation to the appeal). (4) The Minister or a council is entitled to be a party to any proceedings under this section. Part 6—Civil remedies and penalties 33—Civil remedies (1) Application may be made to the Environment, Resources and Development Court for 1 or more of the following orders: (a) if a person has engaged, is engaging or is proposing to engage in conduct in contravention of this Act—an order restraining the person from engaging in the conduct and, if the Court considers it appropriate to do so, requiring the person to take any specified action; (b) if a person has refused or failed, is refusing or failing or is proposing to refuse or fail to take any action required by this Act—an order requiring the person to take that action; (c) if a person has caused damage to property by a contravention of this Act—an order requiring the person to take specified action to make good the damage and, if appropriate, to take specified action to prevent or mitigate further damage; (d) if the Minister or a council has incurred costs or expenses in taking action to prevent or mitigate damage caused by a contravention of this Act, or to make good resulting damage—an order against the person who committed the contravention for payment of the reasonable costs and expenses incurred in taking that action; (e) if a person has suffered injury or loss or damage to property as a result of a contravention of this Act, or incurred costs and expenses in taking action to prevent or mitigate such injury, loss or damage—an order against the person who committed the contravention for payment of compensation for the injury, loss or damage, or for payment of the reasonable costs and expenses incurred in taking that action; (f) if a person who has been issued with a nuisance abatement notice or litter abatement notice has incurred costs and expenses in carrying out the requirements of the order or reimbursing the Minister or a council for action taken in pursuance of the order—an order for payment of the whole or a portion of the costs and expenses, as the Court considers appropriate, against 1 or more other persons who were liable for the costs and expenses; (g) if the Court considers it appropriate to do so, an order against a person who has contravened this Act— (i) if the application for the order was made by the Minister—for payment for the credit of the Consolidated Account; or (ii) if the application for the order was made by a relevant council—for payment to the council, of an amount in the nature of exemplary damages determined by the Court. (2) The power of the Court to make an order restraining a person from engaging in conduct of a particular kind may be exercised— (a) if the Court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or (b) if it appears to the Court that, in the event that an order is not made, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of causing local nuisance, littering or injury to persons or loss or damage to property if the first mentioned person engages in conduct of that kind. (3) The power of the Court to make an order requiring a person to take specified action may be exercised— (a) if the Court is satisfied that the person has refused or failed to take that action—whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to take that action; or (b) if it appears to the Court that, in the event that an order is not made, it is likely that the person will refuse or fail to take that action—whether or not the person has previously refused or failed to take that action and whether or not there is an imminent danger of causing local nuisance, littering or injury to persons or loss or damage to property if the first mentioned person refuses or fails to take that action. (4) In assessing an amount to be ordered in the nature of exemplary damages, the Court must have regard to— (a) any detriment to the public interest resulting from the contravention; and (b) any financial saving or other benefit that the respondent stood to gain by committing the contravention; and (c) any other matter it considers relevant. (5) The power to order payment of an amount in the nature of exemplary damages may only be exercised by a Judge of the Court. (6) An application under this section may be made— (a) by the Minister or a council; or (b) by any person whose interests are affected by the subject matter of the application; or (c) by any other person with the permission of the Court. (7) Before the Court may grant permission for the purposes of subsection (6)(c), the Court must be satisfied that— (a) the proceedings on the application would not be an abuse of the process of the Court; and (b) there is a real or significant likelihood that the requirements for the making of an order under subsection (1) on the application would be satisfied; and (c) it is in the public interest that the proceedings should be brought. (8) If an application is made by a person other than the Minister— (a) the applicant must serve a copy of the application on the Minister within 3 days after filing the application with the Court; and (b) the Court must, on application by the Minister, join the Minister as a party to the proceedings. (9) If an application is made by a person other than the relevant council— (a) the applicant must serve a copy of the application on the relevant council within 3 days after filing the application with the Court; and (b) the Court must, on application by the council, join the council as a party to the proceedings. (10) An application under this section may be made in a representative capacity (but, if so, the consent of all persons on whose behalf the application is made must be obtained). (11) An application may be made without notice to any person and, if the Court is satisfied on the application that the respondent has a case to answer, it may grant permission to the applicant to serve a summons requiring the respondent to appear before the Court to show cause why an order should not be made under this section. (12) An application under this section must, in the first instance, be referred to a conference under section 16 of the Environment, Resources and Development Court Act 1993 (and the provisions of that Act will then apply in relation to the application). (13) If, on an application under this section or before the determination of the proceedings commenced by the application, the Court is satisfied that, in order to preserve the rights or interests of parties to the proceedings or for any other reason, it is desirable to make an interim order under this section, the Court may make such an order. (14) An interim order— (a) may be made on an application without notice to any person; and (b) may be made whether or not the proceedings have been referred to a conference; and (c) will be made subject to such conditions as the Court thinks fit; and (d) will not operate after the proceedings in which it is made are finally determined. (15) If the Court makes an order requiring the respondent to take any specified action to make good any damage to property or to prevent or mitigate further damage, the provisions of Part 5 relating to— (a) the taking of action by the Minister or a council on non-compliance with a nuisance abatement notice or litter abatement notice; and (b) the recovery of costs and expenses by the Minister or a council, apply in relation to the Court's order in the same way as in relation to a nuisance abatement notice or litter abatement notice issued by the Minister or a council under that Part. (16) The Court may, if it thinks fit, adjourn proceedings under this section in order to permit the respondent to make an application for the grant or variation of an environmental authorisation within the meaning of the Environment Protection Act 1993 that should have been but was not made, or to remedy any other default. (17) The Court may order an applicant in proceedings under this section— (a) to provide security for the payment of costs that may be awarded against the applicant if the application is subsequently dismissed; (b) to give an undertaking as to the payment of any amount that may be awarded against the applicant under subsection (18). (18) If, on an application under this section alleging a contravention of this Act, the Court is satisfied— (a) that the respondent has not contravened this Act; and (b) that the respondent has suffered loss or damage as a result of the actions of the applicant; and (c) that in the circumstances it is appropriate to make an order under this provision, the Court may, on the application of the respondent (and in addition to any order as to costs), require the applicant to pay to the respondent an amount, determined by the Court, to compensate the respondent for the loss or damage suffered by the respondent. (19) The Court may, if it considers it appropriate to do so, either on its own initiative or on the application of a party, vary or revoke an order previously made under this section. (20) Proceedings under this section based on a contravention of this Act may be commenced at any time within 3 years after the date of the alleged contravention or, with the authorisation of the Attorney-General, at any later time. (21) An apparently genuine document purporting to be under the hand of the Attorney-General and to authorise the commencement of proceedings under this section will be accepted in any legal proceedings, in the absence of proof to the contrary, as proof of the authorisation. (22) The Court may, in any proceedings under this section, make such orders in relation to the costs of the proceedings as it thinks just and reasonable. (23) Without limiting the generality of subsection (22), in determining whether to make any order in relation to costs the Court may have regard to the following matters (so far as they are relevant): (a) whether the applicant is pursuing a personal interest only in bringing the proceedings or is furthering a wider group interest or the public interest; (b) whether or not the proceedings raise significant issues relating to the administration of this Act. 34—Minister or council may recover civil penalty in respect of contravention (1) Subject to this section, if the Minister or a relevant council is satisfied that a person has committed an offence by contravening a provision of this Act, the Minister or council may, as an alternative to criminal proceedings, recover, by negotiation or by application to the Environment, Resources and Development Court an amount as a civil penalty in respect of the contravention. (2) The Minister or a relevant council may not recover an amount under this section in respect of a contravention if the relevant offence requires proof of intention or some other state of mind, and must, in respect of any other contravention, determine whether to initiate proceedings for an offence or take action under this section, having regard to the seriousness of the contravention, the previous record of the offender and any other relevant factors. (3) The Minister or a relevant council may not make an application to the Court under this section to recover an amount from a person as a civil penalty in respect of a contravention— (a) unless the Minister or council has served on the person a notice in the prescribed form advising the person that the person may, by written notice to the Minister or council, elect to be prosecuted for the contravention and the person has been allowed not less than 21 days after service of the notice to make such an election; or (b) if the person serves written notice on the Minister or council, before the making of such an application, that the person elects to be prosecuted for the contravention. (4) The maximum amount that the Minister or a relevant council may recover by negotiation as a civil penalty in respect of a contravention is the sum of the amount specified by this Act as the criminal penalty in relation to that contravention and the amount of any economic benefit acquired by the person, or accrued or accruing to the person, as a result of the contravention. (5) If, on an application by the Minister or a council, the Environment, Resources and Development Court is satisfied on the balance of probabilities that a person has contravened a provision of this Act, the Court may order the person to pay to the Minister or council an amount as a civil penalty (but not exceeding the sum of the amount specified by this Act as the criminal penalty in relation to that contravention and the amount of any economic benefit acquired by the person, or accrued or accruing to the person, as a result of the contravention). (6) In determining the amount to be paid