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The Environment Management Act, 2002 Part X - Reviews and Appeals

CONTENTS | PART I | PART II | PART III | PART IV | PART V | PART VI | PART VII | PART VIII | PART IX | PART X | PART XI | SCHEDULE 1

PART X - REVIEWS AND APPEALS

Right of review

81. (1) Any person who is aggrieved by any decision made, or direction given, by the Authority taken in the exercise of its powers and functions under this Act, may apply in accordance with section 82 for a review of that decision or direction by delivering a review application to the Director.

(2) Without prejudice to any other grounds for review, any person may object to the granting of licence, permit or other authorisation under this Act on the basis that the conditions in the licence, permit or authorisation do not provide adequate protection to the environment or to human beings against the risk of adverse effects, or otherwise fail to give effect to the purpose of this Act.

Applying for a review

82. (1) A review application shall be accompanied by payment of a review fee prescribed by regulation and shall be delivered to the Director within the period specified in the relevant section, or if no period is specified, within 30 days after the date on which the applicant was given notice of the decision or direction that the applicant wants reviewed.

(2) The Board has a discretion to accept a review application delivered out of time if it considers it is equitable to do so.

(3) A review application shall:

a. state the name and address of the applicant;

b. set out or otherwise identify sufficiently the decision or direction that is to be reviewed; and

c. set out the grounds for the review and state briefly the facts on which the applicant relies.

(4) On receiving a review application, the Director may reconsider the matter and may make a new decision.

(5) If the Director does not consider it appropriate to change the original decision or if the Director makes a new decision that is not acceptable to the applicant, the Director shall immediately forward the application to the Board.

(6) On receiving a review application the Board shall cause an inquiry to be conducted concerning the matters raised in the review application by a person or persons appointed by the Board in writing for that purpose.

(7) Despite subsection (4), the Board may dismiss a review application and need not cause an inquiry to be conducted if the Board, after considering the review application, considers it to be trivial, frivolous or manifestly without merit.

(8) The Board shall notify the applicant in writing of the reasons for dismissing a review application and the applicant may appeal against the decision to any competent court.

Staying of orders

83. (1) If an application has been made for the review of a direction in an order issued under this Act, the applicant may at any time prior to the determination of the review, under section 82, apply to the Board, or to the person appointed under section 82(6), for a temporary stay of the order.

(2) The Board or person conducting the inquiry may, upon providing the applicant and the Director an opportunity to make oral or written submissions, decide to stay the order, to stay certain provisions of the order, or to dismiss the application for a stay.

Conduct of inquiry

84. (1) The applicant and the person who made the decision or gave the direction shall be given a reasonable opportunity of being heard by, and making written submissions to, the person conducting the inquiry.

(2) An inquiry shall be conducted fairly according to the substantial merits of the case without regard to technicalities.

(3) A person conducting an inquiry under this Act has the power to summon and examine witnesses on oath as if that person were a Commissioner as defined in the Commissions of Enquiry Act, No. 35 of 1963 and the provisions of sections 10, 11, 13, 14, 15, 16 and 17 of that Act shall apply with the necessary modifications.

(4) A person conducting an inquiry is not bound by any rules of evidence and may conduct the inquiry and obtain information as that person considers appropriate.

(5) On completing the inquiry, the person conducting it shall report to the Board giving that person's findings and recommendations.

(6) Where the person conducting an inquiry considers that it is desirable and necessary to do so, the person may, either on that person's own initiative or in response to an application by the applicant or by the person who made the decision or gave the direction being reviewed, refer a question of law arising in the inquiry for determination in the High Court.

(7) If a question of law is referred to the High Court, the inquiry shall not be concluded until the judgement of the Court has been made and taken into account.

Review by the Board

85. (1) When the Board receives the report of the person conducting the inquiry, the Board shall consider and determine the review application and may:

a. allow the application wholly or in part;

b. dismiss the application; or

c. refer the application back to the person conducting the inquiry with a request for consideration or further consideration of some fact or issue.

(2) In determining a review application, the Board:

a. shall have regard to the purpose of this Act and the principles set out in section 5;

b. may have regard to relevant environment policies, guidelines and codes of practice published by the Authority;

c. shall have regard to, but is not bound by, the findings and recommendations of the person conducting the inquiry.

(3) The decision of the Board on a review application shall be given in a written notice delivered to the applicant and to the Director, and shall set out the reasons for the decision.

(4) The decision of the Board on a review application is final and shall be given effect.

(5) The Minister may, at the request of the Board, order an applicant whose application has been dismissed wholly or in part to reimburse the Authority for some or all of the charges, costs and any other expenses reasonably incurred by the Authority in connection with the review proceedings, including charges for expert opinions.

CONTENTS | PART I | PART II | PART III | PART IV | PART V | PART VI | PART VII | PART VIII | PART IX | PART X | PART XI | SCHEDULE 1

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