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Contents (1999 - 80)
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Pesticides Act 1999 No 80
Current version for 15 January 2016 to date (accessed 29 April 2017 at 09:40)
Part 3
Part 3 Pesticide control notices
Division 1 Preliminary
18   Definitions
In this Part:
clean-up notice means a notice under Division 2.
clean-up action, in relation to pesticide pollution, includes:
(a)  action to prevent, minimise, remove or mitigate the pesticide pollution, or
(b)  ascertaining the nature and extent of the pesticide pollution, or
(c)  preparing and carrying out a remedial plan of action.
compliance cost notice means a notice under Division 4.
prevention notice means a notice under Division 3.
Division 2 Clean-up notices
19   Environment Protection Authority may direct clean-up action
(1)  The Environment Protection Authority may, by notice in writing, do either or both of the following:
(a)  direct a person who is reasonably suspected by the Authority of causing or having caused any pesticide pollution,
(b)  direct an occupier of premises at which the Authority reasonably suspects that any pesticide pollution is occurring or has occurred,
to take such reasonable clean-up action as is specified in the notice and within a reasonable period that is specified in the notice.
(2)  The clean-up notice may require the person to whom the notice is given to furnish reports to the Environment Protection Authority regarding progress on the carrying out of the clean-up action.
(3)  If the person given a clean-up notice complies with the notice but was not the person who caused the pesticide pollution, the cost of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from the person who caused the pesticide pollution.
(4)  A person who, without reasonable excuse, does not comply with a clean-up notice given to the person is guilty of an offence.
Maximum penalty:
(a)  in the case of a corporation—$120,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues, or
(b)  in the case of an individual—$60,000 and, in the case of a continuing offence, a further penalty of $30,000 for each day the offence continues.
Note.
 An offence against subsection (4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112.
20   Clean-up by public authorities
(1)  If a public authority reasonably suspects, or is advised by the Environment Protection Authority, that any pesticide pollution is occurring or has occurred, the public authority may take such clean-up action as it considers necessary.
(2)  A public authority may take action under this section whether or not a clean-up notice has been given under section 19, and (if such a notice has been given) whether or not the period specified in the notice under that section has ended.
(3)  A public authority may take clean-up action under this section by itself or by its employees, agents or contractors.
21   Clean-up directions may be given orally
(1)  The Environment Protection Authority may, instead of giving a direction under this Division by notice in writing, give the direction orally, but only in such circumstances as the Authority considers to be exceptional.
(2)  A direction that can be given orally under this Division by the Environment Protection Authority can be given orally by a person who is acting under delegated or other authority from the Authority.
(3)  A direction given orally to a person ceases to have effect on the expiration of 72 hours from the time it was given unless confirmed by a written clean-up notice given to the person.
(4)  A direction given orally has the same effect as a direction given by notice in writing, and is taken to be a clean-up notice.
22   Fee
(1)  The purpose of this section is to enable the Environment Protection Authority to recover the administrative costs of preparing and giving clean-up notices.
(2)  A person who is given a clean-up notice must within 30 days pay the prescribed fee (if any) to the Environment Protection Authority.
(2A)  No fee is payable in relation to the revocation or variation of a clean-up notice.
(3)  The Environment Protection Authority may, on the application of a person to whom subsection (2) applies, extend the time for payment of the fee.
(3A)  The Environment Protection Authority may waive payment of the whole or any part of the fee.
(4)  A person who does not pay the fee within the time provided under this section is guilty of an offence.
Maximum penalty: $20,000.
Division 3 Prevention notices
23   Meaning of environmentally unsatisfactory manner
For the purposes of this Division, a pesticide is used in an environmentally unsatisfactory manner if:
(a)  it is used in contravention of, or in a manner that is likely to lead to a contravention of, any provision of this Act or the regulations, or
(b)  pesticide pollution is occurring or has occurred as a result of the use of the pesticide.
24   Preventive action
(1)  This section applies when the Environment Protection Authority reasonably suspects that any pesticide is being, or has been, used in an environmentally unsatisfactory manner at any premises or by any person (otherwise than at premises).
(2)  The Environment Protection Authority may, by notice in writing, do either or both of the following:
(a)  direct the occupier of the premises,
(b)  direct the person who is using or who used the pesticide,
to take such action, as is specified in the notice and within such period (if any) as is specified in the notice, to ensure that the pesticide, or the pesticide and any other pesticide, is in the future used in an environmentally satisfactory manner.
(3)  The action to be taken may (without limitation) include any of the following:
(a)  any action relating to the use of a pesticide (for example the method of application, use at a specified time only, use on specified land only, and the climatic conditions in which the pesticide may be used),
(b)  notification that a pesticide has or is about to be used,
(c)  ceasing to use a particular pesticide, a particular type of spray equipment or a particular method of application,
(d)  ceasing to carry on any operation that involves the use of a pesticide,
(e)  monitoring, sampling, analysing and recording information that is relevant to the use of a pesticide (eg weather conditions),
(f)  preparing and carrying out a plan of action to prevent any pesticide from being used in an environmentally unsatisfactory manner,
(g)  installing, repairing, altering, replacing, maintaining or operating equipment or other machinery used in the application of any pesticide.
(4)  If the occupier who is given a notice is not the person who is using or who used the pesticide, the notice is taken to require the occupier to take all available steps to cause the action to be taken.
(5)  A prevention notice may require the person to whom the notice is given to furnish reports to the Environment Protection Authority regarding progress on carrying out the action required to be taken by the notice.
25   Offence
A person who does not comply with a prevention notice given to the person is guilty of an offence.
Maximum penalty:
(a)  in the case of a corporation—$120,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues, or
(b)  in the case of an individual—$60,000 and, in the case of a continuing offence, a further penalty of $30,000 for each day the offence continues.
Note.
 An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112.
26   Commencement of operation of prevention notice or variation of prevention notice
A prevention notice, or a variation of a prevention notice, does not operate:
(a)  until the period within which an appeal under this Act can be lodged against the notice or variation has expired without an appeal being lodged, or
(b)  if such an appeal is lodged within that period, until the Land and Environment Court confirms the notice or variation or the appeal is withdrawn, or
(c)  until the person who has the right to lodge such an appeal notifies the Environment Protection Authority in writing that no appeal is to be made against the notice or variation,
whichever first occurs.
27   Fee
(1)  The purpose of this section is to enable the Environment Protection Authority to recover the administrative costs of preparing and giving prevention notices.
(2)  A person who is given a prevention notice by the Environment Protection Authority must within 30 days pay the prescribed fee (if any) to the Authority.
(2A)  No fee is payable in relation to the revocation or variation of a prevention notice.
(3)  The Environment Protection Authority may, on the application of a person to whom subsection (2) applies, extend the time for payment of the fee.
(3A)  The Environment Protection Authority may waive payment of the whole or any part of the fee.
(4)  The fee is not payable during the currency of an appeal against the prevention notice.
(5)  If the decision of the Land and Environment Court on an appeal does not invalidate the prevention notice, the fee is payable within 30 days of the decision.
(6)  A person who does not pay the fee within the time provided under this section is guilty of an offence.
Maximum penalty: $20,000.
Division 4 Compliance cost
28   Compliance cost notices
(1)  If the Environment Protection Authority gives a clean-up notice under section 19 to a person, the Authority may, by notice in writing, require the person to pay all or any reasonable costs and expenses incurred by the Authority in connection with:
(a)  monitoring action under the notice, and
(b)  ensuring that the notice is complied with, and
(c)  any other associated matters.
(2)  A public authority that takes clean-up action under section 20 may, by notice in writing, require:
(a)  the person who is reasonably suspected by the public authority of having caused the pesticide pollution concerned, or
(b)  the occupier of the premises at which the public authority reasonably suspects that the pesticide pollution occurred,
or both, to pay all or any reasonable costs and expenses incurred by the public authority in connection with the clean-up action.
29   Recovery of amounts
(1)  The Environment Protection Authority or public authority concerned may recover any unpaid amounts specified in a compliance cost notice as a debt in a court of competent jurisdiction.
(2)  If the person given a compliance cost notice complies with the notice but was not the person who caused the pesticide pollution, the cost of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from the person who caused the pesticide pollution.
30   Registration of compliance cost notices in relation to land
(1)  If a compliance cost notice has been given by the Environment Protection Authority or a public authority to a person, the Authority or public authority may apply to the Registrar-General for registration of the notice in relation to any land owned by the person.
(2)  An application under this section must define the land to which it relates.
(3)  The Registrar-General must, on application under this section and lodgment of a copy of the compliance cost notice, register the notice in relation to the land in such manner as the Registrar-General thinks fit.
(4)  If the notice relates to land under the provisions of the Real Property Act 1900, the notice is to be registered under that Act.
31   Charge on land subject to compliance cost notice
(1)  This section applies where a compliance cost notice is registered under section 30, on the application of the Environment Protection Authority or a public authority, in relation to particular land owned by a person.
(2)  There is created by force of this section, on the registration of the notice, a charge on the land in relation to which the notice is registered to secure the payment to the Environment Protection Authority or public authority of the amount specified in the notice.
(3)  Such a charge ceases to have effect in relation to the land:
(a)  on payment to the Environment Protection Authority or public authority of the amount concerned, or
(b)  on the sale or other disposition of the land with the written consent of the Environment Protection Authority or public authority, or
(c)  on the sale of the land to a purchaser in good faith for value who, at the time of the sale, has no notice of the charge,
whichever first occurs.
(4)  Such a charge is subject to every charge or encumbrance to which the land was subject immediately before the notice was registered.
(5)  Such a charge is not affected by any change of ownership of the land, except as provided by subsection (3).
(6)  If:
(a)  such a charge is created on land of a particular kind and the provisions of any law of the State provide for the registration of title to, or charges over, land of that kind, and
(b)  the charge is so registered,
a person who purchases or otherwise acquires the land after the registration of the charge is, for the purposes of subsection (3), taken to have notice of the charge.
(7)  The regulations may make provision for or with respect to the removal of a charge under this section.
Division 5 Miscellaneous
32   Multiple notices
More than one notice under a provision of this Part may be given to the same person.
33   Extraterritorial application
A notice may be given under this Part to a person in respect of a matter or thing even though the person is outside the State or the matter or thing occurs or is located outside the State, so long as the matter or thing affects the environment of this State.
34   Revocation or variation
(1)  A notice given under this Part may be revoked or varied by a subsequent notice or notices.
(2)  A notice may be varied by modification of, or addition to, its terms and specifications.
(3)  Without limiting the above, a notice may be varied by extending the time for complying with the notice.
(4)  A notice may only be revoked or varied by the Environment Protection Authority.
35   Power to enter land
(1)  The Environment Protection Authority or a public authority may, by its employees, agents or contractors, enter any premises at any reasonable time for the purpose of exercising its functions under this Part.
(2)  For the purpose of entering or leaving any such premises, the power conferred by this section extends to entering other premises.
(3)  A power to enter premises conferred by this section authorises entry by foot or by means of a motor vehicle or other vehicle, or in any other manner.
(4)  Entry may be effected under this section by the Environment Protection Authority or a public authority with the aid of such authorised officers or police officers as the Environment Protection Authority or public authority considers necessary and with the use of reasonable force.
(5)  This section does not empower a person to enter any part of premises used only for residential purposes without the permission of the occupier of the premises or the authority of a search warrant under section 199 of the Protection of the Environment Operations Act 1997.
Note.
 Chapter 7 of the Protection of the Environment Operations Act 1997, which contains a search warrant power, extends to the exercise of powers under this Act.
36   Obstruction of persons
A person who wilfully delays or obstructs:
(a)  a person who is carrying out any action in compliance with a notice under this Part, or another person authorised by the person to carry it out, or
(b)  a public authority that is taking clean-up action under Division 2, or another person authorised by the authority to carry it out,
is guilty of an offence.
Maximum penalty:
(a)  in the case of a corporation—$120,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues, or
(b)  in the case of an individual—$60,000 and, in the case of a continuing offence, a further penalty of $30,000 for each day the offence continues.
37   False or misleading statements in reports
A person who in a report required under this Part and lodged with the Environment Protection Authority makes a statement that the person knows is false or misleading in a material particular is guilty of an offence.
Maximum penalty:
(a)  in the case of a corporation—$120,000, or
(b)  in the case of an individual—$60,000.