Enforcement authorities can take pre-emptive action to avoid non-compliance

30 January 2019
Stafford Hopewell, Partner, Brisbane
Planning and environmental laws establish a wide range of offences and powers to deter and penalise non-compliance, and enforcement action is often directed at remedying or prosecuting breaches.

Enforcement authorities however also often have a range of powers to take pre-emptive action to avoid non-compliance and stop breaches before they occur.  A recent example of the exercise of these powers is court proceedings in The Chief Executive administering the Environmental Protection Act 1994 v Baal Gammon Copper Pty Ltd and Denis Walter Reinhardt.

Baal Gammon Mine

The Baal Gammon copper mine is located near Herberton in Far North Queensland and is subject to an environmental authority (EA) held by Baal Gammon Copper Pty Ltd (Company) under the Environmental Protection Act 1994 (EP Act)

The Baal Gammon mine is currently in care and maintenance and has been subject to previous Clean Up Notices and Environmental Protection Orders in respect to the management of the mine.

Pursuant to s.505 of the EP Act, the Department of Environment and Science (DES) commenced proceedings in the Planning and Environment Court to seek orders to directing the respondents to:

  • Reduce the water level in the Baal Gammon mine pit (dewatering requirement);
  • Engage a suitably qualified person to develop, implement and report on an environmental monitoring program to comply with the dewatering requirement;
  • Report on a weekly basis on the implementation of the dewatering requirement.

Orders were also sought from the Court that Mr Reinhardt, being an executive officer (sole director) of the company, ensure the company comply with the Court orders.

In its originating application to the Court, DES stated it was concerned that the mine pit contained contaminated water that exceeded the relevant limits in the EA and that there was an unacceptable risk that if adequate water reduction measures were not taken, the contaminated water will overtop during the wet season.

EP Act

S.505 of the EP Act provides that a proceeding may be brought in the Court for an order to remedy or restrain an offence against the EP Act.  If the Court is satisfied an offence has been committed or will be committed unless restrained, the Court may make the orders it considers appropriate to remedy or restrain the offence.

An order may require that an activity is stopped or may require a person to do anything required to comply with, or to cease a contravention of, the EP Act.

Court order

The Court ordered a series of interim and final measures, including:

  • The immediate engagement of a suitably qualified person to implement the measures imposed by the order;
  • Treatment of the contaminated water and dewatering in accordance with criteria set out in the order;
  • Monitoring and reporting of water quality.

Conclusion

The Baal Gammon case is an illustration of the pro-active steps that environmental regulators can take to ensure compliance and prevent environmental harm.

While this case specifically related to enforcement of the EP Act, similar powers exist under a range of other Queensland legislation, including the Planning Act 2016.

Key takeaway

When enforcing planning and environmental laws, State and local governments don’t have to wait for an offence to occur before taking action and persons subject to planning and environmental obligations can be made to take preventative action to restrain or remedy offences.


Authored by: 
Stafford Hopewell, Partner

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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