Section 146DC — Environment Protection and Biodiversity Conservation Act 1999: Variation of conditions attached to approval under section 146B

(1) Section 143 (variation of conditions attached to approval) (except subsections 143(1A), (2A) and (2B)) applies in relation to an approval under section 146B in a way corresponding to the way it applies in relation to an approval under Part 9, with the modifications set out in this section. (2) Section 143 applies as if: (a) a reference to the holder of the approval included a reference to the responsible person for the relevant endorsed policy, plan or program; and (b) a reference to an action were a reference to one or more actions covered by the approval under section 146B. Consultation before revocation, variation or addition of conditions (3) If, under section 143 as applied by subsection (1), the Minister proposes to revoke, vary or add a condition attached to an approval under section 146B, the Minister must: (a) give the holder of the approval written notice of the proposed decision (unless the holder has agreed to or requested the revocation, variation or addition); and (b) give the responsible person for the relevant endorsed policy, plan or program written notice of the proposed decision (unless that responsible person has agreed to or requested the revocation, variation or addition); and (c) if the Minister proposes to make the revocation, variation or addition because a condition attached to the approval has been contravened—give the person who contravened the condition written notice of the proposed decision; and (d) in a notice under paragraph (a), (b) or (c), invite the person given the notice to give the Minister, within the period specified in the notice (which must be at least 10 business days after the day the notice is given), written comments on the proposed decision; and (e) publish on the Department’s website an invitation for anyone to give the Minister, within the period specified in the invitation (which must be at least 10 business days after the day the invitation is given), written comments on the proposed decision; and (f) take into account any relevant comments received in response to an invitation under paragraph (d) or (e). Note: For holder and responsible person, see section 528. (4) Subsection (3) is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the Minister’s decision whether or not to revoke, vary or add any conditions attached to an approval under section 146B. Revocation, variation or addition of conditions does not apply to actions substantially commenced (5) The revocation, variation or addition of any condition attached to an approval under section 146B does not apply in relation to an action covered by the approval if the taking of the action has substantially commenced by the time the revocation, variation or addition would, apart from this subsection, take effect, unless the action is specified in a determination made under subsection (6). (6) The Minister may, in writing, determine that the revocation, variation or addition of a condition attached to an approval under section 146B applies to a specified action if the Minister is satisfied that it is appropriate for it to apply to the action despite the taking of the action having substantially commenced. Consultation before making determination (7) Before making a determination under subsection (6), the Minister must: (a) give written notice to each person taking the action to which the contravention relates that the Minister is proposing to make the determination; and (b) invite the person to give the Minister, within the period specified in the notice (which must be at least 10 business days after the day the notice is given), written comments on the proposed determination; and (c) take into account any relevant comments received in response to an invitation under paragraph (b). (8) Subsection (7) is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the Minister’s decision to make a determination under subsection (6). Notification of determination (9) The Minister must as soon as possible after making a determination under subsection (6): (a) give each person taking the specified action: (i) a copy of the determination; and (ii) if a copy of the revocation, variation or addition was not given to the person under section 143—a copy of the revocation, variation or addition; and (b) give the holder of the approval a copy of the determination; and (c) give the responsible person for the relevant endorsed policy, plan or program a copy of the determination; and (d) publish the determination on the Department’s website. The Minister may give notice of the determination in any other way that the Minister thinks fit. Determination not a legislative instrument (10) A determination under subsection (6) is not a legislative instrument.