Division 5 of Part V of the Environment Act 2000 deals with the life of a permit after it issues.
Section 70 — the administration of permits
(a) procedures for renewal of permits;
(b) procedures for transfer and surrender of permits;
(c) procedures for amendment of permits;
(d) annual fees in relation to permits;
(e) reporting by permit holders; and
(f) the effect on the validity of a permit of failure to lodge an annual return or pay fees.
The validity of the permit can be affected by a failure to lodge an annual return or to pay fees. And a permit that has ceased to be valid takes the holder outside section 44(3) — which confers the right to carry out the activity in accordance with the conditions — and outside section 10(1)(a), under which harm is lawful only where permitted by a permit condition.
Diary the annual return and the fee. An administrative lapse can convert lawful operations into unlawful environmental harm.
Section 67(1) separately allows the Regulations to prescribe the term or duration of permits, the amalgamation of applications, the manner of fixing the form of permits, the procedures for financial assurances, and the procedure on refusal. The Director may issue Operational Procedures on any matter relating to the issue of a permit (s 67(2)).
Transfer and surrender
The Act itself says only that the Regulations shall prescribe the procedures. Two points follow from the rest of Part V.
- Under section 60(1), a permit application must be made by the person carrying out or responsible for the activities at the place named. A transfer must therefore align the permit with whoever will actually have effective control at the site under section 41(2).
- Under section 65(3)(k), the suitability of the applicant to hold a permit is a matter the Director must have regard to. That is equally relevant to a proposed transferee.
Do not assume the environment permit passes with the assets. Check the Regulation’s transfer procedure, the outstanding environmental bond under section 99, the status of any environmental improvement plan that is a condition of the permit under section 66(2), and any outstanding compensation — non-payment of compensation is a ground to show cause under section 72(2)(f).
Section 71 — amendment, and the major or minor decision
Where a permit holder applies to amend a permit, the Director shall determine whether the proposed amendment is a major amendment or a minor amendment and:
(a) where it is a major amendment — may issue a notice to undertake an environmental impact assessment under section 50; and
(b) in any case — having regard to the section 65(3) criteria, may grant the amendment where satisfied of the matters in section 65(1).
So an amendment is decided against the same tests as an original grant:
| Provision | What must be satisfied or considered |
|---|---|
| 65(1)(a) | Consistency with all relevant Environment Policies and the Regulations |
| 65(1)(b) | All reasonable steps will be taken to minimise any risk of environmental harm |
| 65(1)(c) | No contravention of a relevant international treaty obligation |
| 65(1)(d) | The applicant will abide by the conditions |
| 65(3) | The objects, the matters of national importance, the general environmental duty, relevant policies, statements and submissions, the suitability of the applicant, the character, resilience and beneficial values of the receiving environment, best practice environmental management, and the public interest |
Section 71(a) lets the Director issue a fresh section 50 notice. If that happens, section 50(4) applies: the amendment cannot proceed until the assessment is completed and, where relevant, the Minister has given approval in principle.
Plan expansions accordingly. Compare section 44(1)(b): a change in process or expansion of works or plant that turns an existing activity into a level 2 or 3 activity requires a permit, and carrying it out without one is an offence.
Challenging an amendment decision
A decision on an amendment is a decision of the Director under this Act in relation to an application made by the permit holder, so the holder may apply to the Environment Council for review under section 68 within 21 days of notification, with an appeal to the National Court on a question of law within 28 days of the Council’s decision.
Keeping a permit in good standing
- Diary the annual return and fee — validity can turn on them.
- Diary the reporting obligations imposed as conditions under section 66 — monitoring reports, audits, improvement plan milestones.
- Before any change, ask whether it is a change in process or an expansion, and at what level.
- Apply to amend before making the change, not after.
- Expect the major or minor determination, and budget time for an assessment if it is major.
- On a transfer, deal with the bond, the improvement plan and any unpaid compensation.
- Keep the compliance record clean — suitability is a criterion at every stage.
Sources
- Environment Act 2000 — ss 10, 41, 44, 50, 60, 65–72, 87, 99; Part V Division 5
- Conservation and Environment Protection Authority Act 2014
Before relying on anything here, read the current text of the Environment Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.