Native Vegetation Act 1991

The following persons may apply to the ERD Court for an order to remedy or restrain a breach of this Act:

the

Council; or

a person who owns or who has any other legal or equitable interest in land that has been, or will be, affected by the breach; or

in the case of a contravention of, or failure to comply with, a heritage agreement—a party to the agreement.

Proceedings under this section may be brought in a representative capacity with the consent of all persons on whose behalf they are to be brought.

If proceedings under this section are brought by a person other than the Council—

the applicant must serve a copy of the application on the Council within three days after filing the application with the Court; and

the

Court must, on application by the Council, join the Council as a party to the proceedings.

An application may be made in the absence of the respondent and, if the

Court is satisfied on the application that the respondent has a case to answer, it may grant the applicant permission to serve a summons requiring the respondent to appear before the Court to show cause why an order should not be made under this section.

An application under this section must, in the first instance, be referred to a conference under section 16 of the Environment,

Resources and Development Court Act 1993.

If—

after hearing—

the applicant and the respondent; and

any other person who has, in the opinion of the Court, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings, the

Court is satisfied, on the balance of probabilities, that the respondent to the application has breached this Act; or

the respondent fails to appear in response to the summons or, having appeared, does not avail himself or herself of an opportunity to be heard, the

Court may, by order, exercise one or more of the following powers:

require the respondent to refrain, either temporarily or permanently, from the act, or course of action, that constitutes the breach;

require the respondent to make good the breach in a manner, and within a period, specified by the Court, or to take such other action as may appear appropriate to the Court, taking into account the nature and extent of the original vegetation;

require the respondent to pay to any person who has suffered loss or damage as a result of the breach, or incurred costs or expenses as a result of the breach, compensation for the loss or damage or an amount for, or towards, those costs or expenses;

require the respondent to pay into the Fund an amount, determined by the

Court to be appropriate in the circumstances, on account of the financial benefit that the respondent has gained, or can reasonably be expected to gain, by committing the breach;

require the respondent to pay into the Fund an amount, determined by the

Court, in the nature of exemplary damages (and this amount may be in addition to any amount ordered to be paid under paragraph (f));

require the respondent to take specified action to publicise—

the breach of this Act; and

the environmental and other consequences flowing from the breach; and

the other requirements of the order made against the respondent;

require the respondent to refrain from an act or course of action, or to undertake an act or course of action, to ensure that the respondent does not gain an ongoing benefit from the breach.

In assessing damages under subsection (6)(g), the Court must have regard to—

damage to the environment caused by the breach of this Act; and

the detriment to the public interest resulting from the breach; and

any benefit (including financial benefit) that the respondent sought to gain by committing the breach; and

any other matter it considers relevant.

The power conferred by subsection (6)(f) or (g) can only be exercised by a Judge of the Court.

The

Council, and any person with a legal or equitable interest in land to which an application under this section relates, is entitled to appear and be heard in proceedings based on the application before a final order is made.

The

Court may make such order in relation to costs of proceedings under this section as it thinks just and reasonable.

In this section—

breach of this Act includes a threatened contravention of, or failure to comply with, this Act or a heritage agreement.