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Contents (1974 - 80)
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National Parks and Wildlife Act 1974 No 80
Current version for 26 October 2018 to date (accessed 13 November 2019 at 15:17)
Part 6A
Part 6A Stop work orders, interim protection orders and remediation directions
Division 1 Stop work orders
91AA   Chief Executive may make stop work order
(1)  If the Chief Executive is of the opinion that any action is being, or is about to be, carried out that is likely to significantly affect:
(a)  protected fauna or native plants or their environment, or
(b)  an Aboriginal object or Aboriginal place, or
(c)  any other item of cultural heritage situated on land reserved under this Act,
the Chief Executive may order that the action is to cease and that no action, other than such action as may be specified in the order, is to be carried out with respect to that environment or in the vicinity of those items within a period of 40 days after the date of the order.
(1A)  After the commencement of Part 11 of the Biodiversity Conservation Act 2016, an order under this section may not be made in relation to protected fauna or native plants or their environment.
(2)  An order takes effect on and from the date on which:
(a)  a copy of the order is affixed in a conspicuous place in the environment or place the subject of the order, or
(b)  the person performing or about to perform the action is notified that the order has been made,
whichever is the sooner.
(3)  This section does not apply in relation to anything authorised to be done by or under:
(a)  a licence granted under this Act or the Threatened Species Conservation Act 1995, or
(b)  the State Emergency and Rescue Management Act 1989 that is reasonably necessary in order to avoid a threat to life or property.
(3A)  This section does not apply in relation to any thing authorised to be done by or under the Rural Fires Act 1997 in relation to any emergency fire fighting act within the meaning of that Act.
(4)  This section does not apply in relation to anything that is essential for the carrying out of:
(a)  development in accordance with a development consent within the meaning of the Environmental Planning and Assessment Act 1979, or
(b)  an activity by a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, or
(c)  an activity in accordance with an approval of a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, or
(d)  a project approved under Part 3A of the Environmental Planning and Assessment Act 1979, or
(e)  State significant infrastructure approved under Part 5.1 of the Environmental Planning and Assessment Act 1979.
(5)  In this Division, a reference to action being, or about to be, carried out includes a reference to action that should be, but is not being, carried out and an order under this Division may be modified accordingly.
(6)  A person must not:
(a)  contravene an order under this section, or
(b)  cause or permit another person to contravene such an order.
Maximum penalty (subsection (6)):
(a)  in the case of a corporation—10,000 penalty units and, in the case of a continuing offence, a further penalty of 1,000 penalty units for each day the offence continues, or
(b)  in the case of an individual—1,000 penalty units and, in the case of a continuing offence, a further penalty of 100 penalty units for each day the offence continues.
Note.
 An offence against subsection (6) 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 175B.
91BB   Prior notification of making of stop work order not required
The Chief Executive is not required, before making an order under this Division, to notify any person who may be affected by the order.
91CC   Appeal to Minister
(1)  A person against whom an order is made under this Division may appeal to the Minister against the making of the order.
(2)  After hearing an appeal, the Minister may:
(a)  confirm the order, or
(b)  modify or rescind the order, but only if this is consistent with the principles of ecologically sustainable development (as described in section 6 (2) of the Protection of the Environment Administration Act 1991).
91DD   Extension of stop work order
The Chief Executive may extend an order under this Division for such further period or periods of 40 days as the Chief Executive thinks fit.
91EE   Consultation about modification of proposed detrimental action
(1)  After making an order under this Division, the Chief Executive must immediately consult with the person proposing to perform the action to determine whether any modification of the action may be sufficient to protect the environment of any protected fauna or native plants.
(2)  If, in the opinion of the Chief Executive, satisfactory arrangements cannot be made to protect the environment that is the subject of an order under this Division, the Chief Executive must recommend the making of an interim protection order under Division 2.
(3)  The Chief Executive must not recommend the making of an interim protection order in relation to anything that is authorised to be done by or under an authority referred to in section 91AA (3) or that is essential for a purpose referred to in section 91AA (4).
91FF   Order prevails over other instruments
(1)  If an order under this Division is in force in relation to an environment, an approval, notice or order (whether made or issued before or after the order pursuant to this Division) under any other Act that requires or permits the environment to be significantly affected is inoperative to the extent of the inconsistency with the order.
(2)  This section has effect whether the approval, notice, order or other instrument concerned was made before or after the making of the order under this Division.
Division 2 Interim protection orders
91A   Interim protection of areas having significant values
(1)  The Chief Executive may recommend to the Minister the making of an interim protection order in respect of an area of land:
(a)  which has, in the Chief Executive’s opinion, natural, scientific or cultural significance, or
(b)  on which the Chief Executive intends to exercise any of the Chief Executive’s powers, authorities, duties or functions under this Act or the Threatened Species Conservation Act 1995 relating to fauna, native plants, threatened species, populations or ecological communities or critical habitat of endangered species, populations or ecological communities, or
(c)  that is critical habitat or the habitat of a threatened species, population or ecological community.
(2)  After the commencement of Part 11 of the Biodiversity Conservation Act 2016, a recommendation for the making of an interim protection order may not be made except in relation to areas of cultural significance.
91B   Interim protection orders
(1)  The Minister may, after considering a recommendation made under section 91A, make an interim protection order in respect of the area of land the subject of the recommendation.
(2)  An interim protection order shall take effect on the date of its publication in the Gazette or on a later date specified in the order.
(3)  An interim protection order may contain terms of a kind set out in the regulations, being terms relating to the preservation, protection and maintenance of the area of land, its fauna, plants, threatened species, populations and ecological communities and critical habitat of endangered species, populations and ecological communities and any Aboriginal object or place subject to the order.
91C   Notice of intention to make order not required
The Minister is not required, before making an interim protection order, to notify any person who will be affected by the order of the intention to make the order.
91D   Duration of interim protection order
(1)  An interim protection order has effect for such period, being not longer than 2 years, as is specified in the order.
(2)  An order ceases to have effect if the area of land subject to the order is reserved or dedicated under this Act or the order is revoked.
(3)    (Repealed)
91E   Revocation of interim protection order
(1)  The Minister may revoke an interim protection order by notice of revocation.
(2)  A notice of revocation shall take effect on the date of its publication in the Gazette or on a later date specified in the notice.
91F   Notice of making of interim protection order
The Minister shall cause notice of an interim protection order and its terms or of the revocation of such an order to be given, as soon as practicable after its publication in the Gazette, to:
(a)  any person who appears to the Minister to be an owner or occupier of the area of land subject to the order,
(b)  the Council,
(c)  the council in whose area (within the meaning of the Local Government Act 1993) the area of land subject to the order is situated, and
(d)  any other person the Minister thinks fit,
and shall consider any advice given by the Council relating to the order.
91G   Failure to comply with interim protection order
A person who is given notice of an interim protection order under section 91F must not:
(a)  contravene the terms of the order, or
(b)  cause or permit another person to contravene the terms of the order.
Maximum penalty:
(a)  in the case of a corporation—10,000 penalty units and, in the case of a continuing offence, a further penalty of 1,000 penalty units for each day the offence continues, or
(b)  in the case of an individual—1,000 penalty units and, in the case of a continuing offence, a further penalty of 100 penalty units 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 175B.
91H   Appeal against order
(1)  An owner or occupier of the whole or any part of an area of land subject to an interim protection order may appeal to the Land and Environment Court against the imposition of the order or any of its terms.
(2)  Such an appeal shall be made within the time and in the manner provided by the rules of the Court.
(3)  In deciding an appeal, the Court may have regard to:
(a)  any hardship caused to the owner or occupier by the imposition of the order or any of its terms, and
(b)  the purposes of the order.
(4)  In deciding such an appeal, the Court has all the functions and discretions of the Minister under this Part and may make such order as it thinks fit.
(5)  A decision of the Court on an appeal is final and shall be given effect to as if it were the decision of the Minister.
91I   Register of orders
(1)  The Chief Executive shall keep a register containing copies of interim protection orders as in force from time to time.
(2)  The register shall be open for public inspection during ordinary business hours, and copies of or extracts from the register shall be available, on payment of the fee fixed by the Chief Executive.
Division 3 Remediation directions
91IA   Cessation of operation of Division
After the commencement of Part 11 of the Biodiversity Conservation Act 2016, a direction under this Division may not be given except in relation to any land reserved under this Act or acquired under Part 11 or any Aboriginal object or Aboriginal place.
91J   Definitions
In this Division:
damage:
(a)  in relation to land reserved under this Act or acquired under Part 11, includes:
(i)  harming an animal, or picking a plant, that is in or on that land, or
(ii)  damming, diverting or polluting any waters on that land, or
(iii)  damage to anything in or on the land (such as a building, structure, pipe, sign, gate, fence etc or any object or place of cultural value), or
(iv)  removal of anything, or part of anything, in or on the land, and
(b)  in relation to a plant, includes picking the plant, and
(c)  in relation to an animal, includes harming the animal.
landholder means a person who owns land or who, whether by reason of ownership or otherwise, is in lawful occupation or possession, or has lawful management or control, of land.
pollute waters has the same meaning as in the Protection of the Environment Operations Act 1997.
waters includes a stream, creek, river, estuary, dam, lake or reservoir.
91K   Directions for remedial work relating to damage to land, habitat and plants and animals
(1)  The Chief Executive may, by notice in writing, direct a person to carry out specified remediation work in a specified manner and within a specified time, if the Chief Executive is satisfied that:
(a)  any land reserved under this Act or acquired under Part 11, or
(b)  any critical habitat, or habitat of threatened species, an endangered population or an endangered ecological community, or
(c)  any plant or animal that is of, or is part of, a threatened species, an endangered population or an endangered ecological community,
has been damaged in or as a result of the commission of an offence under this Act (whether or not any person has been proceeded against or convicted for the offence).
(2)  The specified remediation work to be carried out by a person may include one or more of the following types of work:
(a)  work to control, abate or mitigate the damage to the land, habitat, plant or animal concerned,
(b)  work to maintain, remediate or restore the damaged land, habitat, plant or animal concerned (including replacing removed or dead plants or animals).
(3)  A direction under this section may be varied or revoked by a further notice in writing.
91L   Directions for remedial work relating to harm to Aboriginal objects and places
(1)  The Chief Executive may, by notice in writing, direct a person to carry out specified remediation work in a specified manner and within a specified time, if the Chief Executive is satisfied that:
(a)  any Aboriginal object, or
(b)  any Aboriginal place,
has been harmed in or as a result of the commission of an offence under this Act (whether or not any person has been proceeded against or convicted for the offence).
(2)  The specified remediation work to be carried out by a person may include one or more of the following types of work:
(a)  work to control, abate or mitigate the harm to the Aboriginal object or Aboriginal place concerned,
(b)  work to protect, conserve, maintain, remediate or restore the harmed Aboriginal object or Aboriginal place concerned.
(3)  A direction under this section may be varied or revoked by a further notice in writing.
91M   Persons to whom directions may be given
A direction under this Division may be given to any or all of the following persons:
(a)  the current or former landholder of any land affected by the damage or harm referred to in section 91K or 91L or on which such damage or harm occurred,
(b)  any other person the Chief Executive reasonably believes is responsible for that damage or harm or caused or permitted that damage or harm.
91N   Other ancillary actions that may be directed to be carried out
The Chief Executive in a direction under this Division may also direct a person to carry out the following actions:
(a)  ascertaining the nature and extent of the damage or harm concerned and furnishing the information or records obtained to other persons (including to the Chief Executive),
(b)  preparing, furnishing and carrying out a plan of action,
(c)  furnishing progress reports,
(d)  monitoring, sampling and analysing anything to ascertain the nature and extent of the harm concerned or the progress in remediating the harm,
(e)  vacating the land concerned (or part of it), ceasing to carry on, modifying, or not commencing, an activity on, or use of, the land (or part of it),
(f)  carrying on an activity (or an aspect of it) only during particular times or in a particular manner,
(g)  in relation to harm to an Aboriginal object or place, preparing a report on an activity’s likely impact on the Aboriginal object or Aboriginal place concerned,
(h)  construction, installation or removal of anything (including plants and structures such as fencing, walls, bunds or other barriers),
(i)  erecting or displaying on the land concerned any sign or notice containing directions to persons not to enter the land or not to use the land in a specified manner or for a specified purpose or containing other directions of that kind or any other kind,
(j)  refraining from disturbance or further disturbance of the land concerned in a specified manner or below a specified depth,
(k)  informing the Chief Executive of any change in the ownership or occupancy of the land concerned, to the extent that the person subject to the requirement is aware of the change,
(l)  in relation to harm to an Aboriginal object or place, consulting with Aboriginal community groups or representatives (for example to develop a strategy or plan in relation to the remediation work),
(m)  in relation to harm to an Aboriginal object, moving the object.
91O   Other person may carry out remediation work if failure to comply with direction
(1)  If a person fails to comply with a direction under section 91K or 91L, the Chief Executive may direct any other person to enter the land concerned and carry out all or part of the specified work.
(2)  The Chief Executive may recover the cost of that work from the person given the direction in any court of competent jurisdiction as a debt due by that person to the Crown.
91P   Entry to land to carry out direction
(1)  A person may enter land to carry out a direction under this Division.
(2)  Nothing in this Division authorises a person to enter any part of premises used only for residential purposes except with the consent of the occupier of the premises.
91Q   Failure to comply with remediation direction
(1)  A person must not, without reasonable excuse:
(a)  contravene a direction under this Division, or
(b)  cause or permit another person to contravene such a direction.
Maximum penalty:
(a)  in the case of a corporation—2,000 penalty units and 200 penalty units for each day the offence continues, or
(b)  in any other case—1,000 penalty units and 100 penalty units for each day the offence continues.
Note.
 An offence against subsection (1) 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 175B.
(2)  For the purposes of subsection (1), an example of a reasonable excuse is that the person was unable to enter land because of the refusal of access to the land by its occupier, but entry to that land was essential for the person to avoid committing the relevant offence.
91R   Delay or obstruction of remediation direction
A person must not wilfully delay or obstruct another person:
(a)  who is carrying out any action in compliance with a direction under this Division, or
(b)  who is authorised to enter land and carry out work under this Division.
Maximum penalty:
(a)  in the case of a corporation—2,000 penalty units and 200 penalty units for each day the offence continues, or
(b)  in any other case—1,000 penalty units and 100 penalty units 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 175B.
91S   Recovery by person given notice
If the person given a direction under this Division complies with the direction but was not the person who caused the damage or harm concerned, the cost of complying with the direction may be recovered by the person who complied with the direction as a debt in a court of competent jurisdiction from the person who caused the damage or harm.
91T   Appeals under this Division
(1)  A person given a direction under this Division may appeal against the direction to the Land and Environment Court within 30 days of the service of the notice of the direction.
(2)  The lodging of an appeal does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay action on the direction appealed against.