Remedies available under the Act
Under section 33 of the Act the following applications may be made to the Environment, Resources and Development Court seeking orders:
- preventing a person from engaging in conduct that would be a contravention (breach) of the Act;
- requiring a person to take action if they have refused or failed to take an action required by the Act;
- requiring a person to make good any damage caused by a breach of the Act and to take any specified action to prevent or mitigate further damage;
- requiring payment of reasonable costs and expenses incurred by a council or the Minister in taking action to prevent or mitigate damage caused by a breach of the Act.
The Environment, Resources and Development Court also has the power to make an order for exemplary damages [s 33 (1)(g)] and in doing so must consider the following:
- any detriment to the public interest resulting from the breach;
- any financial saving or benefit gained by the person committing the breach;
- any other matter it thinks relevant.
Who can make an application?
An application can be made by the Minister, a council, any person whose interests are affected by the matter that is the subject of the application or any other person (with the permission of the Court) [s 33(6)]. Where the Court’s permission is required the Court must be satisfied that the application would not be an abuse of process (i.e. an unfair use of legal proceedings to gain an advantage) [s 33(7)]. The Court must also be satisfied that there is a real likelihood that the application will meet all the necessary requirements in order to be successful.
In the first instance, all applications are referred to a conference [s 33(12)] but the Court may make an interim order if it is satisfied that it is necessary to preserve the interests of any of the parties to the proceedings. An application for interim orders must be made by the concerned party [s 33(13)] and may be made without notice and regardless of whether or not the matter has been referred to a conference [s 33(14)].
Time limit in which to make an application
An application must be made within 3 years after the date that the alleged breach of the Act occurred [s 33(20)]. If an application is sought outside of this time period then the Attorney-General must provide his/her authorisation for the application to proceed.
Factors to consider in making an application
Before considering making an application the following factors need to be considered:
- Payment of security for costs
The Court may order an applicant to provide security for the payment of costs that may be awarded against them if the application is later dismissed [s 33(17)].
- Costs to compensate a respondent
The Court has the power to order compensation for a respondent (the person against whom an application has been made) if satisfied that the respondent has not breached the Act, has suffered loss as a result of the actions of the applicant and that such an order is appropriate in the circumstances [s 33(18)].
- Court’s discretion to award costs
Whilst the Court has the power to award costs in any proceedings the exercise of this power may be affected by other considerations that they are authorised to consider. In particular, when making a costs order the Court may consider whether the applicant was pursuing a personal interest only in making the application or whether the action was one affecting a wider (public) interest. They may also consider whether or not the application raises significant issues concerning the administration of the Local Nuisance and Litter Control Act 2016 (SA) [s 33(22),(23)]. These considerations may affect the amount of costs awarded.
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