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Contents (1997 - 156)
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Protection of the Environment Operations Act 1997 No 156
Current version for 5 July 2019 to date (accessed 14 December 2019 at 09:06)
Chapter 9 Part 9.3B
Part 9.3B Green offsets
295M   Definitions
In this Part:
licensed activity means an activity authorised or controlled by a licence.
participant in a green offset scheme means:
(a)  a person who holds a green offset credit created under the scheme, or
(b)  a person who holds a licence that is subject to a condition that requires or authorises the person to participate in or contribute to the scheme, or a licence of a prescribed kind, or
(c)  a person (other than the holder of a licence) who arranges, implements or manages the scheme.
participant in green offset works means:
(a)  a person who holds a licence that is subject to a condition that requires or authorises the person to implement or arrange the works, or
(b)  a person (other than the holder of a licence) who implements or manages the works.
295N   Licence conditions
(1)  A condition of a licence may be imposed in relation to a green offset scheme or work even though:
(a)  the scheme or work does not relate to the licensed premises, or
(b)  the scheme or work does not relate to harm arising from the activity authorised or controlled by the licence,
so long as the harm arises from the same kind of licensed activities and relates to the same types of pollutants or impacts that arise from the activity authorised or controlled by the licence.
(2)  The appropriate regulatory authority may not impose any such condition on a licence unless it is satisfied of the following:
(a)  that the pollutants or impacts of the activity may not be otherwise prevented, controlled, abated or mitigated in a cost effective way by other measures under the licence,
(b)  that the proposed green offset scheme or work is likely to result in at least the same or a more beneficial effect on the environment than the use of such other measures,
(c)  that the effects and benefits of the proposed green offset scheme or work may be reliably estimated or ascertained by the authority,
(d)  that the effects of the proposed green offset scheme or work are likely to occur wholly or partly in an area affected by the pollutants or impacts that arise from the activity,
(e)  that the effects and benefits of the proposed green offset scheme or work are likely to last at least until the relevant impact of the activity is offset.
(3)  The regulations may, for the purpose of giving effect to a green offset scheme or works, impose conditions on licences.
(4)  Conditions of a licence that are imposed by the regulations for the purposes of this Part cannot be substituted, omitted, amended or revoked by a regulatory authority.
(5)  This section does not prevent a condition from being attached to a licence by an appropriate regulatory authority in the manner provided by Chapter 3.
Note.
 Under section 69, conditions may be imposed on licences implementing or otherwise relating to green offset schemes and green offset works.
295O   Green offset schemes
(1)  A green offset scheme is a scheme established for any or all of the following purposes:
(a)  to carry out a specified program for the restoration or enhancement of the environment that is related to a licensed activity,
(b)  to prevent, control, abate, mitigate or otherwise offset any harm to the environment arising (wholly or partly) from any licensed activity,
(c)  to make good any environmental damage arising (wholly or partly) from a licensed activity.
(2)  A green offset scheme may include any or all of the following elements:
(a)  contractual agreements or other arrangements between the person who arranges or implements or manages a green offset scheme and other participants in the scheme,
(b)  the creation of a market for entitlements to participate in a green offset scheme,
(c)  the creation of green offset credits,
(d)  the initial sale or allocation and further sale or allocation of green offset credits,
(e)  provision for the holding of green offset credits by participants,
(f)  the payment of contributions to the scheme for works under the scheme,
(g)  the implementation of works by participants in the scheme,
(h)  the payment of administrative costs relating to the scheme,
(i)  the rights and duties of participants in the scheme,
(j)  the trading of green offset credits or of any entitlements conferred by them (including restrictions on trading and any other dealings),
(k)  safeguards against anti-competitive behaviour by participants in the scheme,
(l)  the alteration, suspension, cancellation or forfeiture of green offset credits, or other rights or entitlements under the scheme,
(m)  provision for a register of green offset credits and participants and for the circumstances in which register information may be disclosed.
(3)  A green offset scheme may include elements other than those mentioned in this section.
(4)  A green offset scheme may, subject to any applicable licence conditions:
(a)  be arranged or implemented or managed by the holder of a licence or another person, and
(b)  involve both participants who are licence holders and who are not licence holders.
295P   Green offset works
(1)  Green offset works are works established by or on behalf of the holder of a licence for any or all of the following purposes:
(a)  to prevent, control, abate, mitigate or otherwise offset any harm to the environment arising (wholly or partly) from any licensed activity,
(b)  to make good any environmental damage arising (wholly or partly) from a licensed activity.
(2)  Green offset works may include any or all of the following elements:
(a)  contractual agreements or other arrangements between the holder of a licence and a person who implements or manages the works,
(b)  the implementation or arrangement of works by participants,
(c)  the payment of administrative costs relating to the works,
(d)  the rights and duties of participants in the works.
(3)  Green offset works may form part of a green offset scheme.
(4)  Green offset works may include elements other than those mentioned in this section.
(5)  Green offset works may, subject to any applicable licence conditions, be implemented or managed by the holder of a licence or another person.
295Q   Regulations relating to green offsets
(1)  The regulations may make provision for or with respect to green offset schemes or works, including provision for or with respect to the following matters:
(a)  any of the elements referred to in section 295O or 295P,
(b)  requirements for agreements or other arrangements relating to green offset schemes or works,
(c)  criteria for activities that may be covered by a green offset scheme or works,
(d)  inspection of premises at which a green offset scheme or works are carried out,
(e)  the functions of a manager of a green offset scheme or works and accountability requirements for managers.
(2)  The regulations must make provision for or with respect to the following matters:
(a)  if appropriate criteria and methodologies are available, the criteria and methodologies for determining whether green offset schemes or works meet required outcomes specified in licence conditions,
(b)  evaluation, on a periodic basis, of green offset schemes or works and publication of such evaluations.
(3)  A green offset regulation is not repealed by the operation of Part 3 of the Subordinate Legislation Act 1989.
(4)  A green offset regulation may be periodically reviewed by the Minister, in accordance with a timetable set out in the regulation. Any such review must include a review of the operation of the elements referred to in section 295O or 295P.
(5)  The Minister is to ensure that the public is given an opportunity to make submissions with respect to the review, and that any submissions with respect to the review that are received within the period allowed for the receipt of submissions are appropriately considered.
(6)  In order to give the public an opportunity to make submissions with respect to the review, the Minister must:
(a)  cause notice of the review to be published in the Gazette and in such other manner as the Minister is satisfied is likely to bring the notice to the attention of members of the public generally or in the locality in which any relevant green offset scheme operates or relevant green offset works are located, and
(b)  in that notice, invite the public to make submissions with respect to the review, and
(c)  allow a period of not less than 21 days for the receipt of those submissions.
(7)  For the purposes of this section, a green offset regulation is a regulation that contains only the following provisions:
(a)  provisions that relate to green offset schemes or works (including any ancillary, consequential, savings or transitional provisions),
(b)  provisions that deal with the citation and commencement of the regulation, or other provisions of a machinery nature.
(8)  This section does not limit the generality of section 295.
295R   Action that may be taken by EPA in relation to green offset schemes or works
(1)  The regulations may authorise the EPA, or a person exercising functions under a green offset scheme on behalf of the EPA, to do any or all of the following, in the circumstances set out in the regulations:
(a)  cancel or suspend green offset credits, or any entitlement that they confer,
(b)  order the forfeiture of green offset credits to the EPA,
(c)  cancel or suspend a person’s right to participate in a green offset scheme, or impose conditions or other restrictions on the right.
(2)  The EPA may appoint a person to manage a green offset scheme or works on behalf of the EPA.
(3)  The EPA may manage or participate in a green offset scheme, including by holding, creating and trading in green offset credits, and may manage or participate in green offset works.
295S   Administrative costs
(1)  The regulations may require participants in a green offset scheme to pay to the EPA a contribution towards the following:
(a)  the costs of management and administration of the scheme (including payment for services provided by any person or body exercising functions under the scheme),
(b)  the costs of ensuring compliance with the scheme,
(c)  any other costs relating to the scheme.
(2)  The regulations may require participants in green offset works to pay to the EPA a contribution towards the following:
(a)  the costs of management and administration of the works (including payment for services provided by any person or body providing or managing the works),
(b)  the costs of ensuring compliance with the works,
(c)  any other costs relating to the works.
(3)  The regulations may:
(a)  require a person to continue to make a contribution referred to in this section in respect of a green offset credit that has been forfeited until the credit is sold or re-allocated, and
(b)  exempt any person or class of persons from payment of a contribution referred to in this section.
(4)  The EPA is not required to pay a contribution referred to in this section.
(5)  This section does not apply to contributions for works under green offset schemes.
295T   Payment of contributions
(1)  A contribution payable under this Part is recoverable by the EPA as a debt in a court of competent jurisdiction.
(2)  The regulations may provide for matters concerning the payment of a contribution payable under this Part.
(3)  The regulations may authorise the payment of a contribution payable under this Part by instalments. If an instalment is not paid by the due date, the balance then becomes due and payable (together with any interest or other penalty for late payment prescribed by the regulations).
295U   Green Offsets Fund
(1)  There is to be established in the Special Deposits Account an account called the Green Offsets Fund.
(2)  Money in the Fund is under the control of the EPA and can be expended by the EPA only for the purposes authorised by this section.
(3)  There is to be paid into the Fund:
(a)  all contributions for green offset schemes paid by the holders of licences, and
(b)  all contributions paid by participants in a green offset scheme or works under a regulation referred to in section 295S, and
(c)  the proceeds of any auction or other sale of credits, or any entitlement conferred by them, under a green offset scheme, and
(d)  the proceeds of investment of money in the Fund, and
(e)  any gift or bequest of money for the purposes of the Fund, and
(f)  any other money appropriated by Parliament for the purposes of the Fund or required by law to be paid into the Fund.
(4)  There may be paid out of the Fund:
(a)  the costs of green offset schemes, including management and administration of schemes and payment for works under the scheme and services provided by any person or body exercising functions under the scheme, and
(b)  the costs of green offset works, including management of works and payment for services by any person or body providing or managing the works, and
(c)  the costs of ensuring compliance with green offset schemes or the provision of green offset works, and
(d)  such other costs relating to green offset schemes or works as the EPA directs to be paid out of the Fund.
(5)  There may be paid out of the Fund to the Consolidated Fund any amount in the Fund that, in the opinion of the EPA, is in excess of the amounts required to meet the costs referred to in subsection (4).
(6)  A separate account is to be established in the Fund for each green offset scheme.
(7)  If more than one account in the Fund is established under this Part, money in the accounts may be invested as a common pool. The proceeds of investments are to be distributed rateably among the accounts that contributed money to the common pool according to the amount contributed.
(8)  This section does not apply to or in respect of contributions, proceeds, money or costs payable in respect of a green offset scheme implemented or managed by a public authority and approved for the purposes of this subsection by the EPA.
(9)  The EPA may not approve a green offset scheme for the purposes of subsection (8) unless it is satisfied that appropriate provision is made for managing and auditing the funds of the scheme.
295V   Exercise of scheme functions by other persons and bodies
(1)  The EPA may enter into agreements and other arrangements with a person or body in respect of the exercise of the functions of the EPA under a green offset scheme or in relation to green offset works by the person or body on behalf of the EPA.
(2)  The regulations may provide for the constitution of committees (as incorporated or unincorporated bodies):
(a)  to provide advice on green offset schemes, and
(b)  to exercise any other functions conferred on them by the EPA or by the regulations in connection with green offset schemes or works.
(3)  A matter or thing done or omitted to be done by such a committee, a member of the committee or a person acting under the direction of the committee does not, if the matter or thing was done or omitted to be done in good faith for the purpose of executing this or any other Act or the regulations, subject a member or a person so acting personally to any action, liability, claim or demand.
295W   Liability for operation of scheme
(1)  The Crown does not incur any liability (including liability for compensation) in respect of anything done or omitted to be done in good faith by the EPA, or by a person exercising functions on behalf of the EPA, in connection with the operation of a green offset scheme or works.
(2)  Without limiting subsection (1), that subsection applies to anything done or omitted to be done in connection with the operation of any register or other system by which green offset credits, or other entitlements, are traded under a green offset scheme.
(3)  This section does not limit the generality of section 294.
(4)  In this section:
compensation includes damages or any other form of monetary compensation.
the Crown means the Crown within the meaning of the Crown Proceedings Act 1988, and includes any officer, employee or agent of the Crown.
295X   Application of Duties Act 1997
A green offset credit, or any other entitlement, created under a green offset scheme is not dutiable property for the purposes of the Duties Act 1997.