Environmental Protection Act 1994

The Court may grant an application under section 355 if the Court is satisfied—

the relevant event was wilfully done or omitted to be done with the intention of relying on the giving of a program notice as an excuse; or

it is not appropriate for section 353(1) to apply to the person who gave the program notice because of the nature and extent of the environmental harm caused or threatened by the continuation of the original offence.

In deciding the application, the Court may have regard to the following—

the circumstances in which the relevant event happened;

the nature and extent of the environmental harm caused or threatened by a continuation of the original offence under the program notice;

the resilience of the receiving environment;

the environmental record of the person;

whether a transitional environmental program or protection order is in force for the activity.

If the Court grants the application, the Court must make an order that section 353(1) does not apply to the person for a continuation of the original offence under the program notice (whether the continuation happened before or after the receiving of the program notice).