Fact Sheet 11
Pollution Control Law in the ACT
Pollution in the ACT is regulated under the Environment
Protection Act 1997 (ACT) and the Environment Protection Regulation
1997. These instruments are enforced by the Environment Protection
Authority (EPA), a statutory office located within Environment ACT.
Pollution is also governed by the common law.
Index
The Environment Protection Authority
The Environment Protection Act 1997
Objects of the Act
What Amounts to Pollution?
The general environmental duty
Environmental Authorisations
Activities requiring Authorisation
Conditions attached to Authorisations
Environmental Protection Agreements
Environmental Improvement Plans
Environmental Protection Orders
Offences and Penalties
Environment Protection Policies
Challenging Decisions about Regulation of Pollution
Pollution Control under Other Laws
Asbestos Regulation
Using the Common Law to challenge pollution
– Nuisance
Contacts
The Environment Protection Authority
The EPA is a statutory position held by the Director of Environment
Protection within Environment ACT. The functions of the EPA are
to administer the Environment Protection Act and any other functions
conferred on it by any other legislation (s.12). In administering
the Act, the EPA is required to consider the objects of the Act,
some of which are mentioned below.
The EPA regulates specific activities through the use of environmental
authorisations, non-binding environment protection agreements and
environmental improvement plans. A member of the public can contact
the EPA about any environmental problem by calling the Environment
ACT helpline. Complaints may lead to the EPA issuing an infringement
notice and an on-the-spot fine (see the section on offences and
penalties below).
The Environment Protection Act 1997 (ACT)
The Act protects the environment from pollution through the use
of environmental authorisations, environmental protection agreements,
accredited codes of practice, environmental audits, environmental
improvement plans, environment protection orders and prosecutions.
Objects of the Act
The objects of the Act (s.3) include:
• Prevention of environmental degradation and adverse risks
to human health and the health of ecosystems by promoting pollution
prevention.
• Requirements for people engaging in polluting activities
to make progressive environmental improvements.
• Regulating, reducing or eliminating the discharge of pollutants
and hazardous substances into the air, land or water consistent
with maintaining environmental quality.
• To promote the principles of ecologically sustainable development.
What Amounts to Pollution?
‘Pollute’ is defined as including ‘to cause or
fail to prevent the discharge, emission, depositing, disturbance
or escape of a pollutant’. A pollutant is a substance that,
when discharged, emitted, deposited or disturbed, may cause environmental
harm. This includes:
• a gas, liquid or solid
• dust, fumes, odour or smoke
• an organism, whether dead or alive, including a virus or
a prion
• energy, including heat, noise, radioactivity, light, or
other electromagnetic radiation
• anything prescribed or any combination of the above elements.
‘Environmental harm’ includes any impact on the environment
as a result of human activity that has the effect of degrading the
environment (whether temporarily or permanently).
Section 8 outlines several activities that are not regulated by
the Act, including:
• trains
• aircraft
• certain motor vehicles
• pollution resulting solely from the appearance or citing
of a structure.
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General Environmental Duty
The Act encourages responsibility for the environment by imposing
a general environmental duty on the whole community, to take all
practicable and reasonable steps to prevent or minimise environmental
harm or environmental nuisance resulting from their activities (s.22).
However, failure to comply with this general environmental duty
is not in itself an offence, and does not constitute grounds for
action under the legislation (s.22(3)). Compliance with the general
duty can be used as a defence in a prosecution for other offences
under s.143.
Environmental Authorisations
Types of Authorisation
Activities that carry the greatest environmental risk must not be
carried out without a legally binding authorisation (Part 8). There
are three kinds of authorisation, all covering these prescribed
activities:
• A standard authorisation that can be for an unlimited period
but is usually for three years, subject to an annual review.
• An accredited authorisation in relation to which effect
has been given, or is being given, to an environmental improvement
initiative aiming for best practice.
• A special authorisation where the activity is being conducted
for the purposes of research and development, including a trial
of experimental equipment, granted for a specified period not longer
than three years.
Standard authorisations most commonly authorise a named person to
conduct the authorised activity in a specified location, subject
to specific conditions set out in an attached schedule.
Authorisations require the payment of a fee, which can vary substantially
from $164.50 to tens of thousands of dollars, depending on the activity
and the level of pollutants released to the environment. These fees
are set out in an Environment protection (fees) Determination 2004r.
Load based licensing has been introduced into authorisations recently
as a means of implementing the polluter pays principle. Fees include
a component, which is applied as a rate per kilogram of pollutant,
that the authorisation holder releases into the environment. Pollutant
loading has been put in place in the ACT for sewerage treatment
works, incinerators and petroleum storage facilities.
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Activities requiring Authorisation
There are three situations where an environmental authorisation
is required:
1. The conduct of Class A activities, which are activities involving
the greatest environmental risk. These are listed in Schedule 1
of the Act and include, but are not limited to:
• transport of hazardous waste within the territory and between
states and territories
• operation of commercial landfill facilities
• operation of agricultural facilities
• motor racing events
• commercial use of chemical products, registered under the
Commonwealth’s Agricultural and Veterinary Chemical Code (AgVet),
for pest control or turf management
• manufacture, sale, storage, supply, transport, use, servicing,
disposal of, or dealing with an ozone depleting substance (for example,
the servicing of car air conditioning systems)
• cutting, storing, seasoning sale and supply of firewood
• operation of sewage treatment plants.
The public can view current authorisations at the EPA or can consult
the EPA website.
2. The conduct of Class B activities, where an environmental protection
agreement is not in place. Class B activities have less potential
for causing significant environmental harm than Class A activities,
and include:
• commercial collection of waste
• wastewater recycling activities
• growing, harvesting and management of forestry products.
3. Other situations - the EPA may require an environmental authorisation
on the grounds that the person conducting the activity:
• has, is, or is likely to contravene the Act, and
• the contravention has caused, or is likely to cause, serious
or material environmental harm.
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Conditions attached to Authorisations
Section 51 of the Act details the kinds of conditions that can be
attached to an authorisation to ensure compliance with the Act.
Conditions may require that an applicant:
• commission an environmental audit on a specified matter;
• prepare a draft environmental improvement plan;
• provide a financial assurance of a specified kind and amount
to the EPA;
• give specified information regarding the environmental impact
of the activity at any specified time during the period of the authorisation;
• conduct environmental monitoring or testing;
• comply with a specified provision of an industry standard
or code of practice, being a provision that relates to minimising
environmental harm.
Public consultations on Authorisations
Under s.48 of the Act the EPA is required to place a notice of an
application for an authorisation in the Legislation Register and
the Canberra Times, inviting submissions on the application within
fifteen days. However, the minister can make a declaration that
public consultation is not required for a particular prescribed
activity where there is no impact, or minimal impact on the environment.
This declaration is a disallowable instrument and must be notified,
presented and voted upon in the Legislative Assembly. A notice of
the grant of an authorisation must also be published in the legislation
Register and the Canberra Times.
Varying an Authorisation
Section 60 of the Act gives the EPA power to vary environmental
authorisations. Such a variation does not have to be publicly notified.
However, the public may become aware of a variation concerning an
authorisation by keeping a watch on disallowable instruments before
the Legislative Assembly.
Breaching an Authorisation
The EPA may, by notice in writing, suspend or cancel an environmental
authorisation where it has reasonable grounds for believing that
the holder has contravened the authorisation, an environment protection
order or a provision of the Act. The breach must result in serious
or material environmental harm (s.63).
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Environmental Protection Agreements
Environmental protection agreements (Part 7) are developed between
the EPA and people conducting less harmful Class B activities, listed
in Schedule 1 to the Act. These agreements are formal written documents
that have effect for a specific period of time. There is no fee
payable for an agreement. Under s.40 an agreement does not relieve
a party from any obligation or duty under the Act or any other law.
Public consultation on agreements
These agreements are notified in the Legislation Register and Canberra
Times as having been entered into but there is no public input by
way of submissions. The minister may declare that the notification
requirements for agreements do not apply if the minister is satisfied
that the implementation of the agreement is not likely to cause
any material environmental harm (s. 41(5) and (6)). Such a declaration
is a disallowable instrument scrutinised by the Legislative Assembly
and notified in the ACT legislation register. Members of the public
can view agreements at the EPA.
Breaching an agreement
If an environmental protection agreement is breached, the EPA has
the capacity to suspend the agreement. The holder will then have
to apply for a legally binding environmental authorisation, for
which he or she must pay the appropriate fees. When a breach of
the Act has occurred, prosecution may take place.
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Environmental Improvement Plans
An environmental improvement plan is a formal plan to rectify problems,
minimise environmental impacts and achieve compliance with the Act
(Div 9.1). It can be put in place either to prevent or rectify harm.
The EPA can require a plan if there is, or is likely to be, serious
environmental harm caused by a contravention of the Act and the
EPA considers that an improvement plan will help to rectify the
situation. These plans can be required as part of an environmental
authorisation, or alternatively can be prepared on a voluntary basis.
Environmental improvement plans can be viewed by the public at the
EPA.
Environmental Protection Orders
Where the EPA has reasonable grounds for believing that a person
has contravened or is contravening an environmental authorisation
or a provision of the Act, it may serve an environment protection
order on the person(s.125). The order is in writing, and identifies:
• the person on whom the order is served;
• the provision of the Act or authorisation contravened;
• the nature of the contravention;
• the day, time and place where the contravention happened.
The order may also be served on the occupier of contaminated land.
In this case, the order will specify:
• the nature of the substances in, on or under the land;
• the grounds the EPA has for believing the land is contaminated;
• the action that must be taken, stopped or not commenced
by the person;
• the maximum penalty on conviction for a failure to comply
with an order.
Orders can specify particular requirements of things to be done
or not done, including:
• stopping or not commencing a specified activity for a period
of time or indefinitely;
• undertaking particular action to remedy the harm and, if
appropriate, taking action to prevent or mitigate further harm;
• restoring the environment in a public place or for the public
benefit;
• not conducting a particular activity except during specified
times or subject to specified conditions;
• providing information to the EPA on the environmental impact
of an activity being conducted.
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Offences and Penalties
Part 15 of the Act sets out Pollution offences.
Section 116 of the Act allows an authorised officer to serve an
infringement notice on a person if the officer has reasonable grounds
for believing that a person has committed a minor environmental
offence. These minor offences are listed in Schedule 5 to the Environment
Protection Regulations.
The infringement notice includes an on-the-spot fine. The maximum
fine for breach of an environmental regulation is ten penalty units,
which is currently $1000 for an individual, or $5000 for a corporation.
If the fine is not paid within twenty-eight days a final infringement
notice is issued that adds an administrative charge to the fine.
A person may also apply for a withdrawal of the notice, under s.119.
Prosecution for minor environmental offences can only occur if the
person has not responded to the second and final notice and a period
of fourteen days after the date of the notice has elapsed.
Penalties become more serious if the environmental harm becomes
‘material’ or ‘serious’, which is usually
when the harm:
• continues over time, occurs frequently, or has a cumulative
effect;
• is in an area of high conservation value;
• results in the loss of property of $5,000 or more for material
harm, or $50,000 or more for serious harm;
• results in remediation costs of $5,000 or more for material
harm, or $50,000 or more for serious harm.
Within each offence there are differing penalties. This is based
on whether a person:
• knowingly or recklessly polluted—for material environmental
harm $100 000 fine, imprisonment for two years, or both and for
serious environmental harm $200 000 fine, imprisonment for five
years, or both
• negligently polluted—for material environmental harm
$75 000 fine, or one year imprisonment, or both and for serious
environmental harm $150 000 fine, imprisonment for three years,
or both
• polluted the environment—for material environmental
harm $50 000 fine and for serious environmental harm $100 000 penalty
units.
There are further specific offences prescribed under Schedule 2
of the Act.
Liability of Government Entities
Generally, governmental entities are not immune from the provisions
of the Act (s.10). However, they are specifically exempt from prosecutions
matters concerning:
• compliance with an authorisation (s.45);
• pollution of the environment causing environmental harm
(s.139(3)), including serious (s.137(3)) or material (s.138(3))
environmental harm;
• causing an environmental nuisance (s.141);
• placing a pollutant where it could cause harm (s.142).
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Environment Protection Policies
The Act is supported by EPPs, which are guidelines that provide
information on how the legislation will be administered and interpreted
by the EPA. There is one general EPP and eight specific EPPs, accessible
on Environment ACT’s website. EPPs are not legally binding
(s.30).
The process for development of the EPPs is described in Part 4 of
the Act. Firstly, draft EPPs are developed by the EPA. The EPA publishes
a notice in the ACT legislation register and the Canberra Times,
containing a brief description of the policy, information on where
copies can be obtained and inviting anyone to make written comments
or suggestions within the consultation period of forty working days.
Comments received during this period are considered and the EPA
may revise the draft EPP in accordance with the suggestions received
(s.26). Finally, the policy goes to the Minister for Environment
for his or her consent.
Challenging Decisions about Regulation of Pollution
Under s.135
of the Act an eligible person may apply to the Administrative
Appeals Tribunal for review of a decision of the EPA. An eligible
person is a person to whom a notice must be given under s.135(2)
or any other person whose interests are affected by the decision.
Numerous types of decisions may be reviewed, including: (a) exclusion
of or refusing to exclude a document or part of a document from
public inspection; (i) not taking any action under the Act; and
(e) granting an environmental authorisation. [Full
list of reviewable decisions here]
In addition to lodging an appeal in the AAT, it is possible to apply
to the Supreme Court for an injunction (Division 13.3). Where there
is a breach or a likely breach of the Act, an environmental authorisation
or protection order, the Supreme Court may order the respondent
to remedy or to stop committing the breach (s.128). If the matter
is urgent, it is possible to seek an interim order, but the court
must be convinced that there is a real or significant likelihood
that serious or material damage will occur before the application
is decided (s.129).
Applications for injunctions can be made by the EPA or by any other
person. The Supreme Court may grant leave for ‘any other person’
to make an application if the person has first asked the EPA to
take action and it has failed to do so, and the proceedings are
in the public interest (s.127).
A disincentive to public participation is the fact that the Supreme
Court may make an order for security of costs, which involves the
applicant having to prove that they can pay the costs of the other
party if the application fails. Additionally, failure of the case
may result in the applicant having to pay compensation to the person
alleged to be in breach (ss.131 and 132).
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Pollution Control under Other Laws
Another option for members of the public seeking to restrain water
pollution is to seek Orders under Division
6.3 of the Land Act.
The Planning Authority, ACTPLA has the power to make orders to control
non-point source water pollution from earthworks. These can be made
under the Part 6 of the Land (Planning and Environment) Act
1991 to restrain persons carrying out an activity that involves
disturbing or interfering with soil in a watercourse or within 20
metres of its banks or on steeply sloped land.
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Asbestos Regulation
in the Territory
Specific Territory
legislation governs the handling and disposal of asbestos and materials
containing asbestos.
The ACT laws
that manage and regulate asbestos are:
* Building
Act 2004;
* Construction Occupations (Licensing) Act 2004;
* Dangerous Substances Act 2004;
* Dangerous Substances (General) Regulations 2004;
* Environment Protection Act 1997; and
* Occupational Health and Safety Act 1989.
For a detailed
fact sheet on the operation of asbestos legislation and practical
pointers on how to handle situations involving asbestos please visit
the official ACT government Asbestos
website.
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Using the Common Law to challenge Pollution – Nuisance
The common law also provides remedies that can be used to restrain
pollution – primarily nuisance. Action to restrain these 'torts'
or civil wrongs can be commenced in ACT Courts.
A common law nuisance is an indirect interference with another persons
land or enjoyment of it, caused, for example, by noise or air pollution.
There are two different types of nuisance – public or private.
Private nuisance is where an individual landholder suffers ‘material’
injury, affecting the reasonable enjoyment of property. Although
it is not necessary to establish a duty of care for nuisance, it
must be proven that the nuisance would have been reasonably foreseeable
by the property owner. The key factor in determining liability is
the “reasonableness” of the activity causing the nuisance
complained of.
Public nuisance is available where an action materially affects
the reasonable comfort and convenience of a section of the public.
A person complaining of a public nuisance must be able to show they
are affected in some way over and above the public generally. Alternatively,
if special damage cannot be established, a member of the public
may ask the Attorney-General to take on proceedings in the public
interest.
A standard defence to actions in nuisance is to claim "statutory
authorisation", ie that the pollution was permitted by an authorisation
granted by a government agency. In the Territory this would be an
environmental
authorisation granted by Environment ACT.
However, this defence is restricted by Section
9 of the Environment Protection Act 1997 (ACT). That
section provides that civil and common law remedies are not affected
or diminished by operation of the EP Act. In addition, compliance
with the Act “is not, of itself, evidence that a common law
duty of care has been satisfied”.
In other words, the Act suggests that a nuisance action may succeed
even if there is an apparent compliance with the legislation. For
example, noise pollution may be found to amount to a nuisance
at common law, even the conduct or activity causing it, is authorised
and lawful under the EP Act.
Nevertheless it may be rather difficult to establish that the wrong
has been committed, as compliance with the statute in itself, prima
facie, suggests a level of “reasonableness” in the conduct
of the polluter.
As this is a complex area of law, it is wise to seek detailed advice
concerning the particular facts of the situation under consideration.
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Contacts
Environment Protection Authority (ACT)
12 Wattle St
Lyneham ACT 2602
Helpline: (02) 6207 9777
www.environment.act.gov.au
ACT Planning and Land Authority (ACTPLA)
Applications Secretariat
Dame Pattie Menzies House
16 Challis St
Dickson ACT 2602
(02) 6207 1687
www.actpla.act.gov.au
ACT Administrative Appeals Tribunal
4 Knowles Place
CANBERRA ACT 2602
By Post: GPO Box 370 CANBERRA CITY ACT 2601
Ph: (02) 6217 4261 or (02) 6217 4279
Fax: (02) 6217 4505
Email: magistrates.court@act.gov.au
http://www.courts.act.gov.au/magistrates/index.html
ACT Ombudsman
GPO Box 442
Canberra ACT 2601
Ph: 1300 362 072, 6276 0111
Email: ombudsman@ombudsman.gov.au
Website: http://act.ombudsman.gov.au
Environmental Defender’s Office
Public Trustee House
Level 1, 4 Mort Street
(In the Bus Interchange)
Canberra ACT 2601
Ph: (02) 6247 9420
Website: www.edo.org.au
Further Information and Disclaimer
The law described in this Fact Sheet is current at March 2005.
The ACT EDO Fact Sheets have been designed to give readers plain
English background knowledge to planning and environmental decision
making in the ACT. The ACT EDO Fact Sheets cannot replace the need
for professional legal advice in individual cases.
The information contained in this publication is for general reference
only. If you are contemplating legal action, you should seek legal
advice on the specific facts of your case as soon as possible. These
Fact Sheets cannot replace the need for professional legal advice
in individual cases.
Duplication and reproduction of the information provided in any
ACT EDO Fact Sheet is permitted with acknowledgment of the ACT EDO
as source.
The ACT EDO Fact Sheets Project was carried out with the assistance
of funds made available by the ACT Government under the ACT Environment
Grants Program.
Important: Readers are advised to seek professional legal advice
in relation to specific legal questions.
These fact sheets provide a summary of the law and are not intended
to be comprehensive or to cover the specifics of any given situation.
While every effort has been made to ensure the content is as accurate
as possible, the EDO does not accept any responsibility for any
loss or disadvantage resulting from reliance or use of this work.
Other Fact Sheet Titles
Note: The other fact sheet titles are unavailable at this time
as they are being updated following legislative amendments and administrative
changes. These fact sheets will be added as soon as possible.
Fact Sheet 1 Environmental and Planning Law in the ACT
Fact Sheet 2 National Capital
Plan and the Territory Plan
Fact Sheet 3 The Development Approval
Process
Fact Sheet 4 EIA Law in the ACT
Fact Sheet 5 Management of Public Lands
Fact Sheet 6 Heritage Law
Fact Sheet 7 Biodiversity Protection Law in the ACT
Fact Sheet 8 Tree Protection
Fact Sheet 9 Investigating Decision Making about the Environment
Fact Sheet 10 Challenging
Decision Making about the Environment
Fact Sheet 11 Pollution Control Law
in the ACT
Fact Sheet 12 Noise Pollution Control in the ACT
Fact Sheet 13 Freedom of Information
Law in the ACT
Fact Sheet 14 Freedom of Information Law (Commonwealth)
Fact Sheet 15 Incorporating an Environmental
Group in the ACT
For information about State environmental legislation, visit the
national EDO website.
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