Section 72 of the Environment Act 2000 lets the Director take a permit away. Section 73 creates the offences that follow.
Section 72(2) — the grounds for a show-cause notice
(a) the permit holder has been convicted of an offence against this Act in relation to the activity for which the permit was granted — other than an offence for which the maximum fine on a person other than a corporation is K50,000.00 or less;
(b) the permit was issued because of a materially false or misleading representation or declaration in writing;
(c) the holder has breached a condition of the permit;
(d) the holder has failed to perform an obligation required by this Act in relation to the permitted activity;
(e) the holder has failed to notify the Director of unlawful, serious or material environmental harm in accordance with section 8(1); or
(f) on application by a person entitled to compensation under section 87, the Director is satisfied that the holder has not paid compensation as agreed or determined.
A person entitled to compensation under section 87 may apply to the Director, and unpaid compensation then becomes a ground on which the permit itself is at risk. That is a far more practical lever than a debt claim against a well-resourced operator.
Note the threshold in ground (a): a conviction only counts where the offence is one carrying a maximum fine above K50,000 for a non-corporate offender — which points to the serious harm offence in section 11, and the offences in sections 44(4) and 73(1).
Sections 72(2) to (4) — the procedure
1. The Director serves a notice on the permit holder requiring him to show cause within the stated time why the permit should not be suspended or cancelled.
2. Where the holder has failed to satisfy the Director that there are good reasons for the failure, the Director may suspend the permit for a stated period or cancel it.
3. The Director shall inform the holder of the decision by written notice and state the reasons.
Section 72(5) preserves the operation of section 95 (actions in case of drought), and section 72(6) allows the Regulation to make further provision for the circumstances and procedures of suspension.
The test is whether the holder satisfies the Director that there are good reasons. A response should: address each ground specifically; explain what happened and why; set out what has been done to remedy it and to prevent recurrence; and, where a condition has been breached, propose a compliance programme with dates. Attach the evidence — monitoring data, incident reports, works completed.
A decision to suspend or cancel is a decision of the Director under this Act in relation to an activity carried on by that person, so it attracts review by the Environment Council under section 68 within 21 days — and the operation of the decision may be suspended on receipt of the review application.
Section 73 — the offences
| Offence | Corporation | Other person | Default penalty |
|---|---|---|---|
| 73(1) — carrying out an activity while the permit is suspended or cancelled | K250,000.00 | K125,000.00 or 5 years’ imprisonment, or both | K15,000.00 |
| 73(2) — breaching a condition of a permit | K100,000.00 | K50,000.00 or 2 years’ imprisonment, or both | K10,000.00 |
Section 73(1) carries the same maximum as causing serious environmental harm under section 11 — the Act treats operating on a dead permit as gravely as causing serious harm.
- An offence under section 73(2).
- A ground for suspension or cancellation under section 72(2)(c).
- Loss of the protection in section 10(1)(a), so any resulting harm becomes unlawful environmental harm — opening up the offences in sections 11, 12 and 13, with fines up to K250,000 for a corporation.
The default penalties matter too: with section 116 on continuing offences, a breach that is not fixed keeps accruing.
The Director’s other options
Suspension and cancellation are not the only tools. The Director may also:
- issue an Environment Protection Order under section 101;
- issue a Clean-up Order under section 103, and recover the costs under section 105;
- give an Emergency Direction under section 106;
- require information under section 108;
- commission an environmental audit or investigation under section 74; and
- institute proceedings for breach under section 16(1)(e).
If you receive a show-cause notice
- Diary the stated time for the response, and ask in writing for an extension if the evidence cannot be assembled.
- Identify which ground is relied on — the six are quite different, and the answers differ.
- Stop and fix the breach now; a remedied breach is the strongest “good reason”.
- Where compensation is unpaid, pay it or resolve the dispute — ground (f) is easy to remove.
- Check whether section 8 notice was given when harm occurred; ground (e) is often the real complaint.
- Ask for the written reasons under section 72(4).
- Diary 21 days for a section 68 review, and ask for the decision to be suspended.
- Do not keep operating once a permit is suspended or cancelled — section 73(1) is one of the heaviest penalties in the Act.
Sources
- Environment Act 2000 — ss 8, 10–13, 16, 44, 68, 72–74, 87, 95, 101, 103, 105, 106, 108, 116
- Conservation and Environment Protection Authority Act 2014
- Constitution — s 59 (natural justice)
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.