This guide explains some of the ways individuals can take action to prevent activities that are causing harm or threatening to cause harm to the environment or places of heritage value. In some cases, individual action is appropriate and in others, the situation may be resolved by contacting the appropriate authorities. Some contact details are included for various agencies who can take action or offer assistance.
The first place to report cases of pollution is the Environment Protection Authority (EPA). Pollution includes all types of waste, smoke, fumes, dust, odour, noise or heat. It doesn’t matter whether the pollution is being caused by an individual or a company or even if the polluter cannot be identified, the EPA is the appropriate authority. If you make a report to the EPA, you are entitled to be told about the action the EPA has taken or proposes to take as a result of your notification (s.130 Environment Protection Act).
Contact: 8204 2000 (office hours) 8204 2004 (complaints). Country Callers: 1800 623 445
For cases of pollution that are life-threatening or require urgent action ring the police; contact 11444 for police attendance or 000 for life-threatening emergencies.
For cases of littering or dumping of rubbish in a public place, contact the local council.
Private action against pollution
In certain situations applications can be made to the Environment, Resources and Development Court for an order to prevent, stop or clean up pollution or any other breach of the Environment Protection Act 1993 (SA) (s. 104 Environment Protection Act). Only a person affected by the pollution or a person with the Court’s permission can make an application. Also, the court may order you to pay the costs of the other parties and an amount in damages if you are unsuccessful.
The Environment, Resources and Development Court Registry (SA) can be contacted on 8204 0300.
In most cases, the use of the Court by private individuals or groups will be confined to cases where the EPA refuses to take action itself. The EDO should be contacted for advice.
Native vegetation & animals
Native Vegetation If native vegetation is being destroyed or threatened, whether on private or public land, the Native Vegetation Council is the appropriate authority by virtue of the Native Vegetation Act 1991. This applies in all country areas and in the metropolitan Hills Face Zone or metropolitan Open Space System. The City of Onkaparinga and some parts of the Munno Para, Noarlunga and Yatala council areas are also covered by the Native Vegetation Act.
The Native Vegetation Council is empowered to take action to stop or prevent damage to native vegetation. Non-native species of plants are not covered. Contact the Native Vegetation Council on (08) 8124 4753.
In Metropolitan areas, the local council is the appropriate authority, however they do not usually have power in relation to plants and trees on private land.
A ‘significant tree’ is any tree with a trunk circumference of 2.0m or more measured at a point 1.0m above natural ground level. In the case of trees with multiple trunks, it is those with trunks with a total circumference of 2.0m or more and an average circumference of 625mm or more measured at a point 1.0m above natural ground level.
Controls under the Development Act 1993 and the Development Regulations 2008 enable councils to require a development application for the removal of, or damage to, any significant tree in the Adelaide metropolitan area and the urban and township areas in the Adelaide Hills and Mount Barker Councils.
To report any issues surrounding significant trees contact your local council.
Most native animals are protected by law and severe penalties can be imposed on persons destroying, harming or taking animals. Incidents should be reported to the Department of Environment and Natural Resources, Investigations and Compliance Unit, phone: (08) 8124 4861.
To report incidents occurring in National Parks or other reserves, it may be quicker to contact local park staff or phone the Department of Environment and Natural Resources on (08) 8124 4700.
Endangered species legislation in South Australia is contained in the National Parks and Wildlife Act 1972. A list of native animals classified as endangered species can be found under Schedule 7 of the Act. In addition, there are State and Commonwealth laws prohibiting the export of native wildlife (including bird & reptile eggs). Any suspect activity should be reported to the Customs Watch department of the Australian Government Department of Sustainability, Environment, Water, Population and Communities, phone: 1800 06 1800.
Police officers or park rangers can arrest people who are threatening to damage a national park or wilderness protection area.
Threats to heritage places
If you become aware that a place of heritage value is threatened with demolition, alteration or other building work, you can take action in the following ways;
You can contact your local council requesting them to issue a notice to stop any breach of the Development Act 1993 (Sections 69 & 84 Development Act 1993).
You can also contact the South Australian Heritage Council who can issue an order stopping any detrimental activity if the place is on or ought to be considered for inclusion on the State Heritage Register (section 30 Heritage Places Act 1993). Contact the South Australian Heritage Authority (SA) on (08) 8124 4960.
If you become aware that a place or object of Aboriginal heritage significance is being or is in danger of being damaged or desecrated you should contact the Aboriginal Affairs and Reconciliation Division of the Department of Premier and Cabinet. The Minister for Aboriginal Affairs can take immediate action to prevent damage or desecration (sections 24 & 25 Aboriginal Heritage Act 1988).
The Aboriginal Affairs and Reconciliation Division can be contacted on (08) 8226 8900.
In addition, you should consider contacting the relevant Aboriginal Community (if known).
The Commonwealth Minister for Aboriginal Affairs also has power to issue an emergency order to protect Aboriginal heritage. (sections 9,12 & 18 Aboriginal and Torres Strait Islander Heritage Protection Act 1984). Applications to the Minister can only be made by affected Aboriginal communities or their representatives.
A person has a very limited right to apply to the Supreme Court for an injunction to prevent or restrain environmental damage. Injunctions are quite different to the types of action listed above and should be viewed as a last resort. The disadvantages of injunctions are that they take time, are expensive and if you lose you may have to pay the costs and damages of the other side.
Injunctions are granted where:
- A private legal right is being interfered with such as toxic chemicals leaking onto private land; or
- A public right is being interfered with (such as the destruction of heritage listed vegetation) and the person seeking the injunction has a special interest in that public right. (Note that the special interest must be more than “intellectual” or “emotional” concern for the environment. The interest must be such that the person would gain some advantage from the injunction. If you are conducting research in the particular area, or if you rely on the particular environment for your livelihood you may satisfy this test. This special interest is very difficult to satisfy in the protection of the environment); and
- There is no other legal action you can take.
This is a very complex area of law and specialist legal advice should be sought.
Urgent action against councils, government agencies and ministers
If a local council or Government agency (such as EPA or Native Vegetation Authority) or a Minister has made a decision that adversely effects the environment, there are various actions that can be taken. A typical type of action is to apply to the Supreme Court to review a decision made by a government agency. If the decision of the government agency is found to be illegal or improperly made, then the Court can overturn the decision or require that a new decision be made.
As with injunctions, these actions are very complex and can be expensive, but offer a last resort method to try to protect the environment from bad government or council decisions.
If you wish to challenge the decision of a Commonwealth Government Agency or Minister, different rules apply. Some of the measures that can be taken include requesting a statement of reasons for a particular decision, challenging the legality of a decision or challenging the merits of a decision.
Use of media and publicity
Very often the force of public opinion can stop governments, companies and individuals from acting in an irresponsible way towards the environment. Highlighting the issue through the mass media is often the best way of obtaining publicity and is often a far cheaper and quicker way of preventing damage to the environment than using bureaucratic or legal measures.
An important issue to consider in media and publicity is the law of defamation. If you wrongly accuse a person or company of causing harm to the environment, you could later be liable to pay compensation or damages.
Generally, you will be safe if you stick to facts you can prove, however it is always wise to obtain legal advice if you are in any doubt about publicity materials, press releases or speeches you are considering making.
The Environmental Defenders Office (SA) inc, (EDO) is a non-profit community legal centre offering free advice to individuals and groups on all matters of environmental law. The EDO operates an advisory on Thursday evenings between 6-8PM at: 408 King William St Adelaide SA 5000 Fax +61 (08) 8410 3855. Appointments are necessary and must be made by ringing 8410 3833 or freecall 1800 337 566. It is not a substitute for proper legal advice. Important legal details have been omitted to provide a brief overview of this law. Contact the EDO or your solicitor for more detailed legal advice about your specific problem. This guide was funded by a grant from the Law Foundation of South Australia.