Part V of the Environment Act 2000 creates the permit system. Its central obligation is in section 44.
Section 41 — what counts as carrying out an activity
(a) construction of works, land clearance, demolition, excavation or other works in relation to land or water;
(b) installation, operation or maintenance of plant or equipment;
(c) activities for the purpose of extracting or harvesting natural resources; or
(d) release of contaminants to air, land or water, in connection with any of the above.
A person carries out an activity if he has effective control over that activity at the site — and where a person has such effective control, no other person is regarded as carrying out the activity.
So responsibility is not divided. It attaches to whoever has effective control at the site. Where a landowner leases a site to an operator who runs the works, the operator carries out the activity. Contracting the work out does not shift the obligation away from whoever actually controls the site.
Note how paragraph (a) covers land clearance and works in relation to water, and paragraph (d) captures releases of contaminants connected with the other three. Between them they reach most development activity.
Sections 42 and 43 — levels, and existing activities
(1) The Regulations shall prescribe activities to be level 1, 2 or 3 activities.
(2) Activities that (a) involve matters of national importance, or (b) may result in serious environmental harm, may be prescribed as level 3 activities.
The lists are in the Regulation, not the Act. Section 42(2) tells you the logic of the highest tier: it is reserved for activities touching the matters of national importance in section 5, or capable of serious environmental harm. See levels of prescribed activity.
Activities which (a) were being carried on at the date the Regulation defining the levels came into operation; and (b) have not since changed their nature so as to involve carrying out a level 2 or level 3 activity that was not previously being carried out.
Section 44 — the obligation, and the offence
A person commits an offence where he carries out:
(a) a level 2 or level 3 activity; or
(b) a change in process, or expansion of works or plant in relation to an existing activity such that a level 2 or level 3 activity is carried out,
without an environment permit.
Penalty: a corporation — up to K100,000.00; a person other than a corporation — up to K50,000.00 or two years’ imprisonment, or both. Default penalty: K5,000.00.
Paragraph (b) is the trap for established operations. An existing activity is protected only while it stays the same. A change in process, or an expansion of works or plant, that brings the operation into level 2 or level 3 requires a permit — and the offence is committed as soon as the changed activity is carried out.
A person is not required to have a permit to carry out an existing activity or a level 1 activity — unless the Director has served a notice under section 45.
Section 44(3) and (4) — what a permit confers
An environment permit confers on the holder the right to carry out the activities specified in the permit in accordance with the conditions imposed under it.
Two consequences. Acting outside the specified activities or in breach of the conditions takes the holder outside the permit — and under section 10(1)(a), harm is lawful only where it is permitted under a condition of a permit. And section 44(4) protects the right:
A person who interferes in any way with the exercise of a right conferred by an environment permit, or with the holder, is guilty of an offence. Penalty: a fine not exceeding K50,000.00 or imprisonment for up to one year, or both.
Section 45 — when the Director can require an application
| Who | How served | Time to apply | |
|---|---|---|---|
| 45(1) | Persons carrying out existing level 2 or 3 activities of a specified type without a permit | Notice in the National Gazette and a national or local newspaper | Not less than 28 days |
| 45(2) | A level 1 activity, or an existing activity with no approval, water use permit or contaminants licence under the repealed Acts — where the Director is of the opinion it involves a substantial risk of material environmental harm | Notice served on the site | Not less than 28 days |
Carrying out an activity in respect of which such a notice has been served, without applying within the time specified, is an offence: a corporation up to K20,000.00; another person up to K10,000.00. Default penalty K2,000.00.
Note that the offence is failing to apply, not failing to obtain a permit. Lodge within the period even if the application will take time to complete.
Section 45(3) allows the Regulation to provide a special procedure for applications made in response to such a notice, including notification and referral.
Section 46 — other authorities must wait
(1) Other governmental authorities shall be restrained from issuing permits or licences for level 2 or level 3 activities (other than existing activities) that would authorise conduct causing environmental harm in breach of this Act, until an environment permit has been granted under this Act.
(2) This does not apply to approvals under the Investment Promotion Act 1992.
(3) Where a person applies for another kind of approval for a level 2 or 3 activity under other legislation, the other authority shall refer the application to the Director.
This makes the environment permit the gateway approval. A mining or forestry or planning approval for a level 2 or 3 activity should not issue ahead of it, and the other authority must refer the application across. See how the Act meets mining, petroleum and forestry law.
Working out whether you need one
- Is what you propose an “activity” within section 41(1)? Land clearance, works, plant, resource extraction, or contaminant release connected with them.
- Who has effective control at the site? That person carries out the activity, and no one else.
- What level is it under the Regulation?
- Is it an existing activity as defined in section 43 — and has its nature changed since?
- Is there a change in process or an expansion that pushes it into level 2 or 3? If so, a permit is needed before it is carried out.
- Has a section 45 notice been served or gazetted? If so, apply within the stated period.
- Check whether an environmental impact assessment is required before the application.
- Remember section 7 — the general environmental duty applies whether or not you hold a permit.
Sources
- Environment Act 2000 — ss 5, 7, 10, 41–46, 135; Part V
- Investment Promotion Act 1992
- Mining Act 1992
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.