Tasmania: Environmental Management and Pollution Control Act 1994 (Tas)

Environmental Management and Pollution Control Act 1994 An Act to provide for the management of the environment and the control of pollution in the State, to repeal the Environment Protection Act 1973 and the Chlorofluorocarbons and other Ozone Depleting Substances Control Act 1988 and to amend the Local Government (Building and Miscellaneous Provisions) Act 1993 [Royal Assent 25 August 1994] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: 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 – Agency has the same meaning as in the State Service Act 2000 ; air includes any layer of the atmosphere; Appeal Tribunal means the Tasmanian Civil and Administrative Tribunal; article includes a system; Authority means the Environment Protection Authority established under section 12 ; 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 ; 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; 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) ; 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; Commissioner means the Commissioner of Police appointed under the Police Service Act 2003 ; condition includes a limitation; contaminated site has the meaning given by section 74A ; contravene includes fail to comply with; 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 ; 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; 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 ; 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 ; 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 ; environmental licence means an environmental licence granted under Division 8 of Part 3 ; environmental nuisance means – (a) 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) any emission, discharge, depositing or disturbance specified in an environment protection policy to be an environmental nuisance; environmental standards means environmental standards, as amended from time to time, that are made under section 96Q(1) and that are in effect; environmental standards condition means a provision, of any environmental standards, that is a provision of the kind referred to in section 96O(4)(d) ; 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) ; 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 ; finfish means fish of the class Osteichthyes, other than fish of the order Anguilliformes; finfish farming – see section 5C ; fish farm has the same meaning as in the Inland Fisheries Act 1995 ; 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 ; general environmental duty means the duty of care described in section 23A(1) ; general manager means the general manager of a council; 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; investigation notice has the meaning given by section 74A ; 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; 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; 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; marine farming has the same meaning as in the Living Marine Resources Management Act 1995 ; 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; Panel means the Environment Protection Policy Review Panel established by section 96A(1) ; 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; 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; reasonable costs and expenses means any reasonable costs and expenses assessed in accordance with section 5A ; regulations means regulations made and in force under this Act; related body corporate has the same meaning as in the Corporations Act; 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) ; site management notice has the meaning given by section 74A ; State Policy has the same meaning as in the State Policies and Projects Act 1993 ; 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; technical standard means a technical standard, as amended from time to time, that is made under section 96Y(1) and that is in effect; 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; 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; 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. (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) 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) 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 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 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) 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 (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) . . . . . . . . 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 (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 The Board of the Environment Protection Authority is established. 13A. Membership of Board (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) . . . . . . . . (b) to further the objectives of this Act; and (c) to ensure the prevention or control of any act or omission which causes or is capable of causing pollution; and (d) 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 (1) 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) 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) 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) 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 (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) must further the objectives specified in Schedule 1 ; and (aab) 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) 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 (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 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) 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 (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 (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) Subject to and in accordance with the State Service Act 2000 , persons may be appointed or employed for the purposes of this Act. (2) 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) The Director may– (a) appoint State Service officers and State Service employees appointed or employed in the Department; and (b) 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) A police officer is an authorized officer. (4) The Director may, with the consent of any person, appoint that person or an employee of that person as an authorized officer. (5) 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 (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 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 (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) 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) any environment protection notice issued under section 44 , and any amendment or revocation of any such notice; and (g) any notice issued under Part 5A in respect of a contaminated site, and any amendment or revocation of any such notice. (1A) 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) 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) 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) 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) 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) 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 (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 (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) 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) 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 Division 1 - Assessment of environmental impacts 24. Assessment of permissible level 1 activities (1) 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) 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) 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 – require the planning authority to refer the application to the Board, and the planning authority must comply with the requirement. (1A) A requirement by the Director under subsection (1) must be made – (a) 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) 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) 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) 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) 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) 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) 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) 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) 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) 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) 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) 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) 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) 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) 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) . . . . . . . . (1D) 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) 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) 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) 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) 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) 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) 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) 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) 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) . . . . . . . . (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 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) 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) 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) 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) 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) 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