These Fact Sheets are a guide only and are no substitute for legal advice. To request free initial legal advice on an environmental or planning law issue, please call our FREE Environmental Law Advice Line. Your request will be allocated to one of our solicitors who will call you back, usually within a couple of days.

The information in this fact sheet was last updated in April 2012.

Print this factsheet

4.1 Water, air and noise pollution

4.1.1 Overview

4.1.1.1 Protection of the Environment Operations Act 1997

The main law in NSW regulating water, air and noise pollution is the Protection of the Environment Operations Act 1997 (POEO Act). 1

The POEO Act:

• Empowers regulatory authorities to issue pollution licences;
• Creates a range of pollution offences and penalties;
• Allows regulatory authorities to enforce the POEO Act;
• Allows the public to take legal action to enforce the POEO Act.

The POEO Act also contains offences relating to waste. These are dealt with in Fact Sheet 4.2 on Waste Management.

4.1.1.2 Which Minister and Department are responsible for the Act?

The Environment Minister is responsible for administering the POEO Act. 2

The Environment Protection Authority 3 (EPA) is an independent statutory body headed by a Chief Environmental Regulator. The EPA is generally responsible for implementing the POEO Act, although some responsibilities are shared with other government authorities, such as local councils and the NSW Police (see appropriate regulatory authority below). 4

4.1.1.3 Who is the 'appropriate regulatory authority'?

The POEO Act assigns responsibility for regulating pollution to the 'appropriate regulatory authority'. This is a key concept under the POEO Act.

The appropriate regulatory authority is determined according to the type of premises which is generating the pollution.

Premises are separated into two categories under the Act:

• Scheduled premises (these are listed in Schedule 1 of the POEO Act), and
• Non-scheduled premises (all other premises).

What are the EPA's responsibilities?

The EPA is the 'appropriate regulatory authority' for: 5

• Pollution licencing;
• Activities at scheduled premises (there are listed in Schedule 1 of the POEO Act and include heavy industrial activities; and
• Activities involving the State Government or a public authority.

The Act adopts the 'one premises, one regulator' rule, i.e. once the EPA has licenced a particular site for one medium (e.g. water pollution) then it becomes responsible for regulating all pollution from the premises (e.g. air and noise pollution). 6

Local council responsibilities

Local councils are responsible for regulating pollution from all premises which do not hold a pollution licence (i.e. premises that are not listed in Schedule 1 of the POEO Act - generally small-scale industrial activities). 7

Other public authorities

Other public authorities may be designated as the appropriate regulatory authority under the POEO Act and Regulations. 8

For example:

• The Waterways Authority is the appropriate regulatory authority for issuing noise control notices and noise abatement directions relating to boats and boat-related premises, 9
• The Marine Parks Authority has some responsibilities in marine parks. 10

4.1.2 Pollution licences

The EPA is required under the POEO Act to keep a public register containing information about pollution licences. 11

The public register contains:

• environment protection licences
• applications for new licences and to transfer or vary existing licences
• environment protection and noise control notices
• convictions in prosecutions under the POEO Act
• the results of civil proceedings
• licence review information (submissions regarding licence review  can be made at any time)
• exemptions from the provisions of the POEO Act or Regulations
• approvals granted under clause 9 of the POEO (Control of Burning) Regulation 2000 12
• approvals granted under clause 7A of the POEO (Clean Air) Regulation

4.1.2.1 The EPA issues pollution licences

Under the Act, licences to pollute are called 'environment protection licences' (called 'pollution licences' in this Fact Sheet). The EPA issues pollution licences. 13 Pollution licences can be issued to cover one or more forms of pollution (i.e. air, water and noise pollution).

4.1.2.2 Scheduled premises require a pollution licence

Examples of scheduled premises are:

• Chemical industries, extractive industries;
• Livestock intensive industries;
• Mines and mineral processing works;
• Petroleum production works;
• Sewage treatment systems; and
• Waste disposal facilities.

OEH publishes a detailed Guide to Licencing to help people determine whether they need a pollution licence, and if so, how to apply for one.

Schedule 1 sets out for each type of scheduled premises the criteria for determining whether the activity on those premises requires a pollution licence. These criteria generally relate to the size or intensity of the activity, or the sensitivity of the receiving environment.

For example, an extractive industry which produces more than 30,000 cubic metres per year, or a cement works that has a capacity of 150 tonnes per day or more, must have a pollution licence.

Water pollution from non-scheduled activities can be licensed

The Act permits (but does not require) a pollution licence for a non-scheduled activity for the purpose of regulating water pollution resulting from that activity. 16 However, if an operator of non-scheduled premises chooses to obtain a pollution licence, then they will be able to rely on their licence as a defence if they are charged with the offence of polluting water. 17

Offence not to have pollution licence

It is an offence to carry out an activity on scheduled premises without a pollution licence. 18

The maximum penalties are: 19

• For a corporation - $1 million and $120,000 for each day the offence continues, and
• For an individual - $250,000 and $60,000 for each day the offence continues.

4.1.2.3 Do new pollution licences require environmental assessment?

No, not automatically. The POEO Act does not require new pollution licences to undergo any form of environmental assessment (e.g. an environmental impact statement).

Instead, the legislative scheme of the POEO Act relies upon the environmental assessment provisions in Parts 4 and 5 of the Environmental Planning and Assessment Act 1979 (EPA Act ). This is because new pollution licences are usually issued in conjunction with a development consent, and these types of development will often fall under the category of 'designated development' 20 which means that an environmental impact statement will be required under the EPA Act anyway. (See Fact Sheet 2.2 on Development Applications and consents and Fact Sheet 2.2.5 on Environmental Assessment).

Integrated development

A new development which requires both development consent and a pollution licence will also be caught by the 'integrated development' provisions of the EPA Act. 21 (See Fact Sheet 2.2 on Development Applications and consents).

This means that once a development application is lodged for a type of development which also requires a pollution licence, the consent authority must first refer the proposal to the EPA and obtain its general terms of approval before granting development consent. 22 If the EPA indicates that it will not grant a pollution licence, then development consent must be refused. 23

Pollution licence must be given to Part 3A projects

The EPA is not allowed to refuse to grant a pollution licence if the Minister for Planning has granted approval for a project under Part 3A of the Environmental Planning and Assessment Act 1979. Part 3A is now repealed but still relates to major projects and critical infrastructure developments approved under Part 3A before its repeal.

Pollution licence must be given to State Significant Development and State Significant Infrastructure projects

The EPA is not allowed to refuse to grant a pollution licence if the Minister for Planning has granted approval for a project under Division 4.1 (SSD) or Division 5.1 (SSI) of the Environmental Planning and Assessment Act 1979. 24 SSD and SSI replaced the repealed Part 3A, and relate to major projects and critical infrastructure developments.

What happens if development consent is not required?

Where an activity requires a pollution licence but does not need development consent (e.g. mobile waste processing or the transporting of waste, 25 neither of which require development consent because they do not relate to the use of land), the pollution licence application may still require environmental assessment under Part 5 of the Environmental Planning and Assessment Act 1979. 26

Under Part 5, an activity which is likely to significantly affect the environment must have an environmental impact statement. 27 See Fact Sheet 2.2 for more information on Part 5.

4.1.2.4 What must the EPA consider when granting a licence?

The EPA must consider the following matters when deciding whether to grant a licence: 28

• The objectives of the Environmental Planning and Assessment Act, 29 which include the principles of ecologically sustainable development, such as the precautionary principle, inter-generational equity and the polluter-pays principle;
• The pollution that is likely to be caused;
• The practical measures that can be taken to prevent or reduce the pollution;
• Any relevant green offset scheme;
• Whether the applicant is a fit and proper person; and
• Any environmental impact statement or species impact statement.

4.1.2.5 Public participation

Public register for licence applications

The EPA must publish the details of each licence application it receives on its public register . 30

There is no additional requirement for the EPA to advertise licence applications in a newspaper. However, if a licence application is accompanied by a development application, then the public notification provisions under Part 4 of the EPA Act will apply.

The public notification provisions of Part 5 of the EPA Act will apply if the licence is likely to have a significant impact on the environment (but is not accompanied by a development application). The EPA must consider public submissions in deciding whether to grant a licence, including any public submissions made under the development assessment process. 31

Public may seek a statement of reasons

Any person can write to the EPA requesting a statement of reasons as to why the EPA granted or refused a licence application (including applications for transfers or variations) - and the EPA must provide such reasons. 32 The reasons must set out the significant environmental and other issues that the EPA took into account, and the outcomes, standards or requirements that the EPA considered applicable. 33

4.1.2.6 Appeals

Appeals by licence applicant

The applicant for a pollution licence can appeal to the Land and Environment Court in relation to the merits of the EPA's decision to refuse a licence, or against the conditions of a licence. 34 This is known as a merits, or Class 1 appeal. For more information, see Fact Sheet 2.4 on the Land and Environment Court. The appeal must be brought within 21 days of the applicant receiving notice of the EPA's decision. 35

Can the public appeal?

Yes, but only against a legal error in the way the licence was issued. 36 The public has no right to bring a merits appeal. An appeal against a legal error is known as judicial review proceedings (or Class 4 proceedings). This is a challenge against the validity of the decision-making process followed by the EPA in granting a licence, e.g. a complaint that the EPA failed to take into account a relevant matter in arriving at its decision. For more information on judicial review proceedings, see Fact Sheet 2.2 section 8.3 .

4.1.2.7 Licence conditions

The EPA can impose conditions on a pollution licence to prevent or reduce pollution, or the risk of pollution. 37

Examples of common conditions include: 38

• Limits on the types and amounts of pollution that can be discharged;
• Monitoring and reporting obligations;
• Community consultation (e.g. regular meetings) and complaint mechanisms (e.g. a complaints register); and
• Conditions relating to green offset schemes. 39

It is an offence not to comply with the conditions of a pollution licence. 40 The maximum penalties are: 41

• For a corporation - $1 million and $120,000 for each day the offence continues, and
• For an individual - $250,000 and $60,000 for each day the offence continues.

4.1.2.8 Duration and review of licences

Once a pollution licence is issued, it remains in force indefinitely until it is suspended, revoked or surrendered. 44 However, the EPA must review each licence at least once every 5 years. 45

The EPA must give the public notice of its intention to review a licence at least one month and not more than 6 months before the review by publishing a notice in a State-wide newspaper. 46

4.1.2.9 Variation of licences

The EPA may vary the conditions of a licence at any time. 47

Before varying a licence, the EPA must invite public submissions if: 48

• The variation will authorise a significant increase in the environmental impact of the activity, and
• The proposed variation has not been the subject of environmental assessment and public consultation under the Environmental Planning and Assessment Act 1979.

4.1.2.10 Suspension and revocation of licences

The EPA may suspend or revoke a pollution licence. Before doing so, it must give notice to the licence holder, with reasons, and allow the licence holder to make submissions. 49

The reasons for suspending a licence may include (but are not limited to) the following: 50

• If the licence holder obtained it improperly;
• If a licence condition is breached; or
• If the licence holder is no longer a fit and proper person.

The Environment Minister has the power to suspend or revoke a pollution licence if the licence holder is convicted of a major pollution offence. 51

4.1.3 Water pollution

4.1.3.1 Offence to pollute waters

The POEO Act applies a general prohibition to water pollution, i.e. all water pollution is prohibited unless it is authorised in some way.

It is an offence to pollute waters without a pollution licence. The maximum penalties are: 52

• For a corporation - $1 million and $120,000 for each day the offence continues, and
• For an individual - $250,000 and $60,000 for each day the offence continues.

Water pollution can also constitute a more serious pollution offence. See paragraph 7 below on pollution offences.

What is 'water pollution'?

The legal definition of 'water pollution' is very broad. 53 It includes the introduction of any matter - solid, liquid or gas - into waters which changes the physical, chemical or biological condition of the water. It also includes placing any matter where it might fall, descend, be washed or blown, into any waters (e.g. soil which may wash into a creek).

The Regulations contain a list of specific substances (prescribed matter) which, if they are placed on or in water, are automatically assumed to constitute water pollution (e.g. animal carcasses, mud, spoil from mineral processing, human excreta and urine, oil and grease, etc.). 54

4.1.3.2 Defences

It is a defence to a charge of polluting waters if:

• the pollution was authorised by a pollution licence, and the conditions of the licence were not breached, or
• there is a regulation exempting that type of water pollution (e.g. sewage discharge, discharges from boat engines, etc. are permitted). 55

4.1.3.3 Water pollution can be licenced

Water pollution from non-scheduled premises

Water pollution from non-scheduled premises does not need to be licenced, 56 but if the person emitting the water pollution chooses to get a licence, then they will be able to rely on their licence as a defence if they are charged with the offence of polluting water. 57

Water pollution from scheduled premises must be licenced

Of course, water pollution which is generated by an activity on a scheduled premise must be licenced because the Act requires all scheduled premises to be licenced anyway. 58 Scheduled premises are those which are listed in Schedule 1 of the POEO Act. 59

4.1.4 Air pollution

'Air pollution' is defined as the emission into the air of any impurity, including dust, smoke, cinders, solid particles, gases, fumes, odours and radioactive substances. 60

4.1.4.1 Air pollution offences

Unlike water pollution, there is no general prohibition on causing air pollution (except if it is a very serious pollution event, in which case it may constitute a Tier 1 offence. See Paragraph 4.1.7.1 below). 61

An air pollution incident will only be an offence if it arises as a result of:

• A person carrying out an activity on scheduled premises without a pollution licence, 62
• A breach of a pollution licence, or its conditions, 63
• Committing one or more of the specific air pollution offences listed in the POEO Act. 64 These include:
• Failing to maintain or operate industrial plant or equipment in a proper and efficient manner, 65
• Failing to carry out maintenance work on plant in a proper and efficient manner, 66
• Failing to deal with materials in a proper and efficient manner (e.g. allowing raw materials, by-products or waste to smell), 67
• Carrying out an activity, or operating plant, so as to emit pollution in excess of prescribed rates or concentrations 68 (see paragraph below).

Prescribed rates or concentrations of air impurities

Regulations made under the POEO Act establish specific standards above which listed pollutants (e.g. solid particles, smoke, dioxins, etc.) must not be emitted for both scheduled 69 and non-scheduled premises. 70

It is an offence to carry out an activity which causes the emission of air pollution in excess of these standards. The maximum penalties are: 71

• For a corporation - $1 million and $120,000 for each day the offence continues, and
• For an individual - $250,000 and $60,000 for each day the offence continues.

In the absence of a relevant air pollution standard, the occupier must carry on the activity in a way that minimises or prevents air pollution.

4.1.4.2 Burning of fires and smoke

Directions by authorised officers

An authorised officer can issue a notice to the occupier (or the person apparently in charge of the premises) to extinguish a fire immediately if: 72

• the fire is prohibited by an order of the EPA, or
• air pollution from the fire is injuring the health of somebody or is likely to cause serious discomfort or inconvenience to someone.

EPA can prohibit fires

The EPA can issue an order preventing the burning of fires in the open, or in incinerators, if the weather conditions are such that burning will contribute or be likely to contribute to air pollution. 73 The order must be published in a State-wide newspaper or broadcast on the radio. It is an offence not to comply with an order. The maximum penalty is $3,300. 74

Burning prohibited in certain local government areas

The burning of vegetation and domestic waste (excluding barbeques) is generally prohibited in most local government areas without approval from the EPA or local council. 75 Schedule 8 of the Regulation lists those local government areas to which this prohibition applies. 76

Smoke abatement notices

An authorised officer can issue a smoke abatement notice directing the occupier of residential premises to ensure that excessive smoke is not emitted from the chimney for at least 21 days following the giving of the notice. 77

4.1.4.3 Offensive odours

Scheduled premises

It is an offence for an occupier of scheduled premises (i.e. premises with a pollution licence) to emit 'offensive odours' other than in accordance with their pollution licence. 80

An 'offensive odour' is an odour which is harmful to a person who is outside the premises from which it is emitted or which interferes unreasonably with the comfort or repose of a person outside the premises from which it is emitted. 81

Non-scheduled premises

There is no specific offence prohibiting the emission of offensive odours from non-scheduled (unlicenced) premises. However, in some cases, emitting odours may fall within one of the other general air pollution offences (e.g. failing to operate plant in a proper and efficient manner or to maintain the plant in an efficient condition. 82 See paragraph 4.1 on Air pollution offences above.

4.1.4.4 Smoky vehicles

The POEO Act and the POEO (Clean Air) Regulation limit the amount of exhaust which a vehicle is permitted to emit. 83 A motor vehicle must not emit exhaust (i.e. excessive air impurities which are in excess of a certain standard of concentration) which is visible for a continuous period of more than 10 seconds. 84

It is an offence for an owner of a motor vehicle to emit excessive air impurities while the vehicle is being used. The maximum penalty for a corporation is $4,400, and for an individual it is $2,200. 85

On the first occasion, a vehicle owner can be issued with a warning letter requiring the owner to service or repair the vehicle within the period specified on the notice. 86 If the owner fails to comply with the notice, they may be charged with a more serious offence.

4.1.5 Noise pollution

Noise pollution is regulated under the POEO Act and Regulations. 87

4.1.5.1 Noise offences

Unlike water pollution, there is no general prohibition on causing noise pollution. However the POEO Act contains a number of specific offences which regulate certain activities that result in noise pollution.

For example, it is an offence:

• To carry out an activity on scheduled premises without a pollution licence. 88 See paragraph 2.2 on scheduled premises. A pollution licence may often contain conditions which deal specifically with noise, such as the level of noise and times during which noise is permitted.
• For an occupier of industrial premises who is operating plant (machinery) to cause noise if the noise is caused by a failure to properly maintain the plant or to operate the plant efficiently. 89
• To cause noise from industrial premises that deals with materials (e.g. raw materials) because of a failure to deal with those materials in a proper and efficient manner. 90

The maximum penalties  for these noise offences are: 91

• For a corporation - $1 million and $120,000 for each day the offence continues, and
• For an individual - $250,000 and $60,000 for each day the offence continues.

A regulatory authority can still issue a notice or order (see below) directing a person to stop making noise even if it is not an offence to make the noise in the first place.

4.1.5.2 Notices and orders to stop noise pollution

To control noise pollution, a regulatory authority can issue:

• A noise control notice
• A noise abatement direction.

Alternatively, a person can apply to a local court for a noise abatement order.

Noise control notices

The appropriate regulatory authority can issue a 'noise control notice' to the occupier or operator of any premises prohibiting that person from causing noise on specified days and at specified times which is in excess of a specified level. 92

The appropriate regulatory authority will usually be the EPA or the local council. To work out who is the appropriate regulatory authority, see paragraph 4.1.1.3 above - Who is the appropriate regulatory authority ?

It is an offence to breach a noise control notice. The maximum penalty for a corporation is $60,000 and $6,000 for each day the offence continues; for an individual it is $30,000 and $600 for each day the offence continues. 93 A person who receives a noise control notice can appeal against the notice to the Land and Environment Court within 21 days after service of the notice or the making of the order 94 or 7 days if it concerns an animal. 95

Noise abatement directions: issued by authorised persons

A noise abatement direction enables action to be taken to control temporary 'offensive noise'. 96

An authorised person (including a police officer) can issue a noise abatement direction directing a person to stop making offensive noise. 97 The officer can issue the notice if it appears that offensive noise has been emitted at any time within the past 7 days. 98

An authorised person is: 99

• A police officer; 100
• A council officer; 101
• Any person appointed by the EPA; 102 or
• In relation to vessels in navigable waters, an officer or employee of the Maritime Authority of NSW. 103

It is an offence to fail to comply with a noise abatement direction or to emit offensive noise within the 28 days following the direction (or such shorter time as specified in the direction). The maximum penalty is $3,300. 104

Police have the power to seize equipment from a person who is breaching a noise abatement direction. 105 Any equipment must be returned or released within 28 days. 106

Noise abatement orders issued by the Local Court

A person who is affected by offensive noise 107 within their own house (or while occupying other premises) can apply to the Local Court for an order that the offensive noise stop (a noise abatement order). 108

If the Local Court is satisfied that the alleged offensive noise exists, or that it is likely to recur, they can order the noise to stop during specified times and order the person responsible for the noise to prevent a recurrence of the noise. 109

A person against whom a noise abatement order is made can appeal against the order to the Land and Environment Court within 21 days after service of the notice or the making of the order. 110

A noise abatement order cannot be issued against: 111

• the State or a public authority, or
• premises which have a pollution licence.

It is an offence to breach a noise abatement order. The maximum penalty is $3,300. 112

4.1.5.3 Restrictions on the use and sale of noisy items

Noise pollution regulations made under the POEO Act establish noise emission standards for certain items of equipment. 113

Restrictions on sale of noisy items

It is an offence to sell equipment (including cars and car accessories) that emits noise in excess of the levels prescribed by the regulations for that particular item. 114

Time restrictions on the use of noisy articles

The Protection of the Environment Operations (Noise Control) Regulation 2008 contains a range of restrictions, including set time limits (e.g. not before 8 am, or after 8 pm), during which certain noisy things must not be used.

The Regulation covers things such as:

• power tools (including lawn mowers, lawn trimmers, leaf blowers, chainsaws, air compressors) and other equipment (including swimming pool pumps); 115
• musical instruments and sound equipment; 116
• air conditioners and heat pump water heaters; 117 and
• burglar alarms. 118

4.1.6 Enforcement of pollution notices

The POEO Act contains three different enforcement mechanisms:

• Pollution notices;
• Criminal prosecutions; and
• Civil action.

This section deals with the first of these, pollution notices.

The POEO Act allows regulatory authorities to issue a range of administrative notices (called 'environment protection notices', but referred to as 'pollution notices' in this Fact Sheet) in response to a pollution incident or a threatened incident.

Pollution notices are easier and simpler to use compared to court proceedings. They are generally used where a regulatory authority needs to respond quickly to relatively minor pollution incidents.

There are three different types of notices under the POEO Act: 119

• Clean-up notices;
• Prevention notices; and
• Prohibition notices.

4.1.6.1 Clean up notices

If a pollution incident has occurred, the appropriate regulatory authority (either the EPA or the local council) can issue a notice directing a person to take clean-up action (a clean-up notice). 120 The notice can be issued to either the occupier of premises causing the pollution or the person suspected of causing the pollution, or both. The notice can either be issued in writing, or orally (but it must be confirmed in writing within 3 days). 121

The EPA has the power to issue a clean-up notice to a public authority, such as a local council, suspected of creating a pollution incident. 122

It is an offence not to comply with a clean-up notice. The maximum penalty is:

• For a corporation is - 1 million and $120,000 for each day the offence continues.
• For an individual - $250,000 and $120,000 for each day the offence continues. 123

4.1.6.2 Prevention notices

If an activity is being carried out in an environmentally unsatisfactory manner at any premises or by any person (e.g. through a breach of the POEO Act, the Regulations or a condition of a pollution licence), then the appropriate regulatory authority (usually the EPA or the local council) can issue a 'prevention notice'. 124 The notice can direct a person to take preventative action (e.g. to cease using a plant, or to repair equipment) to avoid causing further environmental damage. 125

The notice can be issued to either the occupier of premises or the person carrying on the activity, or both. 126

It is an offence not to comply with a prevention notice. The maximum penalty is

• For a corporation - $1 million and $120,000 for each day the offence continues;
• For an individual - $250,000 and $60,000 for each day the offence continues. 127

4.1.6.3 Prohibition notices

For more serious pollution incidents, the EPA can recommend that the Environment Minister issue a 'prohibition notice'. 128

Prohibition notices are used in response to more serious pollution incidents where there might be harm to the environment, a threat to public health, or discomfort or inconvenience to others. The Environment Minister can issue a prohibition notice. 129

The notice is issued to the occupier or operator of premises (or both) and can direct them to cease carrying on an activity for so long as is specified in the notice. 130

It is an offence not to comply with a prohibition notice. The maximum penalty is:

• For a corporation - $1 million and $120,000 for each day the offence continues;
• For an individual - $250,000 and $60,000 for each day the offence continues. 131

4.1.7 Enforcement of pollution offences

The POEO Act contains three different enforcement mechanisms:

• Pollution notices;
• Criminal prosecutions; and
• Civil action.

This section deals with the second of these: Criminal prosecutions.

4.1.7.1 Criminal offences

More serious pollution incidents are likely to attract a criminal charge which will be heard by the courts, rather than the polluter being issued with a pollution notice (see paragraph 6 on pollution notices above).

The POEO Act classifies all pollution offences into 3 categories: 132

• Tier 1 - most serious
• Tier 2 - for serious, mid-range offences
• Tier 3 - least serious, uses 'on-the-spot' penalty notices.

Tier 1 offences

Tier 1 offences are the most serious offences and involve wilful or negligent activities which harm, or are likely to harm, the environment.

Examples of Tier 1 offences include wilfully or negligently:

• Disposing of waste in a manner that harms or is likely to harm the environment. 133 Allowing a substance to leak, spill or otherwise escape in a manner that harms or is likely to harm the environment. 134
• Emitting an ozone-depleting substance in a manner that harms or is likely to harm the environment. 135

It is a defence if the person establishes that they had no control over the causes of the event and that they took reasonable precautions and exercised due diligence to prevent the event. 136

The maximum penalties for Tier 1 offences are: 137

• For a corporation:
• Wilful offence: $5 million, or
• Negligent offence: $2 million.

• For an individual:
• Wilful offence: $1 million or 7 years' imprisonment, or both, or
• Negligent offence: $500,000 or 4 years' imprisonment, or both.

Tier 2 offences

Tier 2 offences are serious offences which are not Tier 1 offences. 139

Examples of Tier 2 offences include:

• Carrying out an activity on scheduled premises without a pollution licence; 140
• Failing to comply with a pollution notice (environment protection notice), such as a clean-up or prevention notice; 141
• Causing water pollution; 142
• Emitting air impurities in excess of prescribed concentrations; 143
• Emitting offensive odours from schedule premises; 144
• Permitting land to be used unlawfully as a waste facility; 145 and
• Failing to notify the appropriate regulatory authority of a notifiable pollution incident (see paragraph 4.1.7.2 below on duty to notify pollution incidents). 146

Tier 2 offences are generally considered to be 'strict liability' offences. 147 This means that the prosecutor does not need to prove that the defendant intended to commit the act or was negligent. They only need to prove that the defendant's actions caused the pollution. The common law defence of honest and reasonable mistake remains available. 148

The maximum penalties for Tier 2 offences are: 149

• For a corporation: $1 million, and a daily penalty of up to $120,000, and
• For an individual: $250,000, and a daily penalty of up to $60,000.

Tier 3 offences

Tier 3 offences are the least serious of the three categories of offences.

Tier 3 offences are Tier 2 offences for which the regulations permit a penalty notice to be issued. 150

Breaches of the POEO Act and Regulations are more likely to attract a penalty notice if the breach is minor, or a 'once-off' situation that can be remedied easily, and the severity of the breach is not serious enough to warrant Court proceedings. 151

Tier 3 offences are absolute liability offences, for which there are no defences.

Enforcement officers 152 (usually an EPA or local council employee) have the discretion as to whether to serve a penalty notice. A person has 28 days from the date on which it was served to pay the fine under a penalty notice. 153 Alternatively, the person can elect not to pay a penalty notice and have the charge dealt with by a Court instead. 154

Penalties vary for Tier 3 offences, with the maximum penalty for an individual being $1,500, and a corporation $5,000. 155

4.1.7.2 Duty to notify pollution incidents

Polluters have a statutory obligation to immediately report all pollution causing or threatening material harm and all relevant information about it to each relevant authority. 156 See paragraph 4.1.1.3 for more information on the appropriate regulatory authority. Relevant authorities are: 157

• the appropriate regulatory authority;
• if the EPA is not the appropriate regulatory authority-the EPA,
• if the EPA is the appropriate regulatory authority-the local authority for the area in which the pollution incident occurs,
• the Ministry of Health,
• the WorkCover Authority, and
• Fire and Rescue NSW.

The types of incidents which must be reported are those which cause or threaten to cause material harm to the environment. Material harm is harm that involves actual or potential harm to the health or safety of human beings or to ecosystems that is not trivial, or it results in actual or potential loss or property damage of an amount exceeding $10,000. Loss includes the reasonable costs and expenses that would be incurred in taking all reasonable and practicable measures to prevent, mitigate or make good harm to the environment. 158

The duty to notify applies to the person carrying out the activity, the occupier of premises, employers and employees including their agents (who must notify their employer, and then the EPA if their employer cannot be contacted). 159

It is an offence to fail to notify the appropriate regulatory authority of a notifiable event. Maximum penalties were doubled in 2011 in response to the Orica incident. 160 Maximum penalties are:

• For a corporation - $2 million and $240,000 for each day the offence continues; and
• For an individual - $500,000 and $120,000 for each day the offence continues. 161

A person must notify even if they may incriminate themselves or their company. 162

4.1.7.3 Who prosecutes pollution offences?

Criminal prosecutions, which usually result in a fine or other coercive penalty, are different to taking civil action under the POEO Act (e.g. declarations, injunctions). See paragraph 8 below for civil offences.

Environment Protection Authority

The EPA can prosecute any offence under the POEO Act and its regulations. 163

The EPA has principal responsibility for prosecuting offences which relate to: 164

• Activities on scheduled premises;
• Pollution licences; and
• Activities carried on by the State or public authorities.

The EPA has issued

• Prosecution Guidelines which explain how it decides whether to prosecute a matter, and what sort of orders it will ask for; and
• Guidelines which concern new sentencing options for environmental offences committed against the POEO Act.

Local councils

Local councils can also institute proceedings under the POEO Act if they are the appropriate regulatory authority for the matter. See paragraph 4.1.3 for the definition of appropriate regulatory authority. 165

In other words, local councils are responsible for instituting proceedings relating to pollution from non-scheduled premises. See paragraph 4.2.2 for the definition of scheduled premises.

A local council can also institute proceedings for an offence under the POEO Act and Regulations if it is not the appropriate regulatory authority, but the council must obtain permission (leave) from the Court to do so. 166

Police officers

Police officers can institute proceedings for: 167

• A noise pollution offence;
• A littering offence; or
• An offence relating to the operation of a motor vehicle.

However, there are some offences (excluded offences), such as those relating to scheduled premises, pollution licences, or public authorities, which police officers cannot prosecute. See paragraph 4.1.1.3 above on EPA. 168

Members of the public

Any person can institute criminal proceedings in the Land and Environment Court for an offence against the POEO Act or Regulations with the permission (leave) of the Court. 169

The Court can only grant permission if the EPA has decided not to take any action in respect of the act or omission constituting the alleged offence, the EPA has been notified of the proceedings, and there is a prima facie (strong) case that an offence has been committed. 170

4.1.7.4 Which Court hears pollution prosecutions?

Tier 1 offences (most serious) are dealt with by the Land and Environment Court (in Class 5) 171 or the Supreme Court. 172

Tier 2 offences (mid-range offences) are heard before the Land and Environment Court (in Class 5) 173 or a Local Court. 174 However, if the Local Court hears the matter, the maximum fine that it can impose is $11,000, despite the fact that a higher penalty may be permitted under the POEO Act. 175

Tier 3 offences do not go to Court, as they are enforced through penalty notices. However, if the person elects not to pay the fine, the matter can be heard either by the Land and Environment Court (in Class 5) 176 or a Local Court. 177

4.1.7.5 Time limits

Proceedings for serious offences (prescribed offences) must be commenced within 3 years of the date on which the offence is alleged to have been committed, or of the date that the alleged offence came to the attention of an authorised officer. 178 Prescribed offences include Tier 1 offences, offences relating to pollution licences, unlawfully transporting waste or unlawfully permitting land to be used as a waste facility. 179

For all other offences, the prosecution must be commenced within 12 months. 180

4.1.7.6 What penalties can the Court impose?

In addition to fines and imprisonment, the Court can order a person convicted of a pollution offence to take steps to: 181

• Prevent, control, abate or mitigate any harm to the environment caused by the commission of the offence;
• Make good any resulting environmental damage to land (restoration order); 182
• Publicise the offence and its environmental and other consequences and any other orders made against the person; 183
• Carry out a specified project for the restoration or enhancement of the environment in a public place for the public benefit; 184
• Pay a specified amount to an environmental organisation, either for a project or for general environmental purposes; 185 or
• Pay the prosecutor's legal costs, pay a specified amount to the Environmental Trust or a specified organisation for a specified project for the restoration or enhancement of the environment or for general environmental purposes. 186

Deemed liability of directors and managers

If a corporation commits an offence under the POEO Act or Regulations, the directors and anyone else who is concerned in the management of the company (senior management) are also deemed to have committed the same offence. 187

It is a defence if the director or manager: 188

• Was not in a position to influence the conduct of the company; or
• If they were in such a position, that they used all due diligence to prevent the offence.

4.1.8 Civil enforcement

The POEO Act contains three different enforcement mechanisms:

• Pollution notices;
• Criminal prosecutions; and
• Civil action.

This section deals with the third of these, civil action.

4.1.8.1 What is civil enforcement action?

Civil enforcement action is where a person asks a court to enforce an Act or Regulations by imposing a civil remedy, rather than using criminal remedies to punish an offender (e.g. usually a fine or term of imprisonment).

Civil proceedings are often faster and simpler than criminal proceedings because a civil case only needs to be proved on the balance of probabilities, rather than beyond reasonable doubt. The standard of evidence required is therefore lower in civil proceedings.

Civil remedies which can be used to enforce the POEO Act include:

• A declaration that the POEO Act or Regulations have been breached;
• A declaration that a pollution licence is invalid;
• An order suspending an environment protection licence; 189
• An injunction restraining a person from carrying out an unlawful activity; and
• An order that a person fix any damage to the environment (remediation order).

4.1.8.2 Who can take civil action under the POEO Act?

Any person can bring civil proceedings under the POEO Act. 190 This means that there is no restriction on the EPA, local councils, or even members of the public, in bringing a civil action to enforce the POEO Act.

Civil proceedings are brought in Class 4 of the Land and Environment Court. 191

1. See also the Protection of the Environment Operations (General) Regulation 2009.
2. Allocation of the Administration of Acts (No 2) 2008 (NSW).
3. The Environment Protection Authority is a statutory authority with its charter, objectives and responsibilities set out under the Protection of the Environment Administration Act 1991. See also the Protection of the Environment Administration Regulation 2007.
4. POEO Act, s 6.
5. POEO Act, s 6(2).
6. POEO Act, s 44 (Integration of licencing).
7. POEO Act, s 6(2).
8. POEO Act, s 6(3).
9. POEO Act, s 263 and s 275. See definition of 'marine authority' in POEO Act Dictionary, and Protection of the Environment (General) Regulation 2009, cl 85.
10. POEO Regulation 1998, cl 64.
11. POEO Act, s 308.
12. Repealed by Subordinate Legislation Act 1989 No. 146 s. 10(2) effective 1 September 2006.
13. POEO Act, s 6(2)(a).
14. POEO Act, s 48.
15. POEO Act, Schedule 1, Part 2, also lists some activities which require a pollution licence which are not premises-based, such as mobile waste processing and the transporting of waste.
16. POEO Act, s 43(d).
17. POEO Act, s 120 makes it an offence to pollute waters. S 122 provides a defence if the person held a licence which covered the pollution, and that they had not breached the conditions of that licence.
18. POEO Act, s 48.
19. POEO Act, s 48(2).
20. 'Designated developments' are those which are listed in Schedule 3 of the Environmental Planning and Assessment Regulation 2000.
21. Environmental Planning and Assessment Act 1979, s 91. See also POEO Act, s 51.
22. Environmental Planning and Assessment Act 1979, s 91A.
23. Environmental Planning and Assessment Act 1979, 91A(4).
24. Environmental Planning and Assessment Act 1979, ss 89K(1)(e), 115ZH(1)(e).
25. POEO Act, Schedule 1, Part 2, lists some activities which require a pollution licence which are not premises-based.
26. A pollution licence which is being renewed is exempt from Part 5 of the Environmental Planning and Assessment Act 1979 and does not require an environmental impact statement: see Protection of the Environment Administration Act 1991, s 12A.
27. Environmental Planning and Assessment Act 1979, s 112.
28. POEO Act, s 45.
29. Protection of the Environment Administration Act 1991, s 6.
30. POEO Act, s 308(2)(a).
31. POEO Act, s 45(l).
32. POEO Act, s 61.
33. Protection of the Environment Operations (General) Regulation 2009, cl 49.
34. POEO Act, s 287(1), and Land and Environment Court Act 1979, s 17(a).
35. POEO Act, s 287(1).
36. POEO Act, s 252, and Land and Environment Court Act 1979, s 20(1)(c)(i).
37. POEO Act, s 63.
38. POEO Act also lists some other common conditions: see s 66 - 76.
39. POEO Act, s 69(b).
40. POEO Act, s 64.
41. POEO Act, s64.
42. POEO Act, s 295O.
43. POEO Act, s 295N.
44. POEO Act, s 77.
45. POEO Act, s 78(1).
46. POEO Act, s 78(2).
47. POEO Act, s 58(4).
48. POEO Act, s 58(6).
49. POEO Act, s 79(4).
50. POEO Act, s 79(5).
51. POEO Act, s 82.
52. POEO Act, s 123.
53. 'Water pollution' is defined in the Dictionary of the POEO Act.
54. See the list of substances in Schedule 5, Protection of the Environment Operations (General) Regulation 2009, and POEO Act, Definition 'water pollution' sub paragraph (c).
55. POEO Act, s 121, Protection of the Environment Operations (General) Regulation : see cls 55 (discharges of water from Victorian premises into River Murray), 56 (discharges into sewer), 57 (certified on-board sewage treatment systems), 58 (boat engines), and 59 (cold water releases).
56. POEO Act, s 43(d).
57. POEO Act, s 120 makes it an offence to pollute waters. S 122 provides a defence if the person held a licence which covered the pollution, and that they had not breached the conditions of that licence.
58. POEO Act, s 48.
59. POEO Act, Schedule 1, Part 2, also lists some activities which require a pollution licence which are not premises-based, such as mobile waste processing and the transporting of waste.
60. See the definitions of 'air pollution' and 'air impurity' under the Dictionary of the POEO Act.
61. The general Tier 1 offence of wilfully or negligently permitting any substance to leak, spill or otherwise escape in a manner that harms or is likely to harm the environment could include the escape of an air pollutant: POEO Act, s 116.
62. POEO Act, s 48. All premises which are listed on Schedule 1 of the POEO Act are called 'scheduled premises' and require a pollution licence: see paragraph 4.1.3 above.
63. POEO Act, ss 48, 64.
64. See Part 5.4 of the POEO Act which contains a number of specific air pollution offences: s 124 - 129, s 133 - 134; s 135A - 135D (Domestic air pollution).
65. POEO Act, s 124.
66. POEO Act, s 125.
67. POEO Act, s 126.
68. POEO Act, s 128.
69. Protection of the Environment Operations (Clean Air) Regulations 2010, cls 38, 39, Schedules 2, 3 and 4.
70. Protection of the Environment Operations (Clean Air) Regulations 2010, cls 44, 45, Schedule 6.
71. POEO Act, s 132.
72. POEO Act, s 135. Maximum penalty $3,300 (the Crimes (Sentencing Procedure) Act 1999 defines a penalty unit as $110: s 17. POEO Act, s 129).
73. POEO Act, s 133.
74. POEO Act, s 135. The Crimes (Sentencing Procedure) Act 1999 defines a penalty unit as $110: s 17.
75. Protection of the Environment Operations (Clean Air) Regulation 2010, Part 3 Division 3, cls 12,13, and Schedule 8.
76. Protection of the Environment Operations (Clean Air) Regulation 2010, Schedule 8.
77. POEO Act, s 135B.
78. POEO Act, Dictionary definition 'authorised officer'. 'Authorised officers' are appointed under Part 7.2, s 187 of the POEO Act by an appropriate regulatory authority.
79. POEO Act, s 189.
80. POEO Act, s 129.
81. See the definition of 'offensive odour' in the Dictionary of the POEO Act.
82. POEO Act, s 124.
83. POEO Act, s 154(2) defines "emits excessive air impurities", and see Protection of the Environment Operations (Clean Air) Regulation 2002 : Regs 8 and 9.
84. Protection of the Environment Operations (Clean Air) Regulation 2010, cls 14, 15.
85. Protection of the Environment Operations (Clean Air) Regulation 2010, cl 16.
86. POEO Act, s 161.
87. POEO Act, Part 5.5, s 136-141; Protection of the Environment Operations (Noise Control) Regulation 2008.
88. POEO Act, s 48.
89. POEO Act, s 139.
90. POEO Act, s 140.
91. POEO Act, s 141.
92. POEO Act, Part 8.6, s 264.
93. POEO Act, s 265.
94. POEO Act, s 290.
95. Protection of the Environment Operations (General) Regulation 1998, cl 103.
96. The Dictionary in the POEO Act defines 'offensive noise' as noise which is harmful to a person who is outside the premises, or which interferes unreasonably with the comfort or repose of a person who is outside the premises from which it is emitted.
97. POEO Act, Part 8.6, Division 3, s 275-276.
98. POEO Act, s 276.
99. POEO Act, s 275.
100. POEO Act, s 275.
101. POEO Act, s 187(2).
102. POEO Act, s 187(1).
103. POEO Act, s 275(b).
104. POEO Act, s 277(2) and (4). The Crimes (Sentencing Procedure) Act 1999 defines a penalty unit as $110: s 17.
105. POEO Act, s 282.
106. POEO Act, s 282(4).
107. T he Dictionary in the POEO Act defines 'offensive noise' as noise which is harmful to a person who is outside the premises, or which interferes unreasonably with the comfort or repose of a person who is outside the premises from which it is emitted.
108. POEO Act, Division 2, s 268.
109. POEO Act, s 268(4).
110. POEO Act, s 290.
111. POEO Act, s 270.
112. POEO Act, s 269. The Crimes (Sentencing Procedure) Act 1999 defines a penalty unit as $110: s 17.
113. POEO Act, s 136, and the Protection of the Environment (Noise Control) Regulation 2008 Part 4 Div. 1.
114. POEO Act, s 136.
115. Protection of the Environment (Noise Control) Regulation 2008, cl 50.
116. Protection of the Environment (Noise Control) Regulation 2008, cl 51.
117. Protection of the Environment (Noise Control) Regulation 2008, cl 52.
118. Protection of the Environment (Noise Control) Regulation 2008, cl 53.
119. The POEO Act also allows a fourth type of notice to be issued, called a compliance cost notice. A compliance cost notice can require the polluter to pay the regulator's costs of issuing a clean-up or prevention notice: Part 4.5, s 104.
120. POEO Act, Part 4.2 (Clean-up notices), s 91.
121. POEO Act, s 93.
122. POEO Act, s 92.
123. POEO Act, s 91(5).
124. POEO Act, Part 4.3 (Prevention notices), s 96.
125. POEO Act, Part 4.2 (Clean-up notices), s 91.
126. POEO Act, s 96(2).
127. POEO Act, s 97.
128. POEO Act, Part 4.4, s 101.
129. POEO Act, Part 4.4, s 101(1).
130. POEO Act, s 101(2).
131. POEO Act, s 102.
132. POEO Act, s 114.
133. POEO Act, s 115.
134. POEO Act, s 116.
135. POEO Act, s 117.
136. POEO Act, s 118.
137. POEO Act, s 119.
138. In EPA v Keogh [1999] NSWLEC 231, the defendant was fined $12,000 and sentenced to two months imprisonment for failing to comply with a court order requiring the removal of waste (tyres, garbage, plastic). The term was suspended for 12 months to enable the defendant to remove the waste. Although this was an environmental offence, the term of imprisonment was actually for contempt of court, not a breach of the POEO Act.
139. POEO Act, s 114(2).
140. POEO Act, s 48.
141. POEO Act, s 91(5), s 97 and s 102.
142. POEO Act, s 120.
143. POEO Act, s 128.
144. POEO Act, s 129.
145. POEO Act, s 144.
146. POEO Act, s 148 and s 152.
147. Although this is not expressly stated in the POEO Act, the courts have regularly interpreted pollution offences which are similar to Tier 2 offences, as strict liability offences: see State Pollution Control Commission v Tiger Nominees Pty Ltd (1991) 72 LGRA 337 at 342.
148. He Kaw The v The Queen (1985) 157 CLR 523.
149. POEO Act, ss 123, 132, 142A.
150. POEO Act, ss 114, 222.
151. EPA Prosecution Guidelines, http://www.environment.nsw.gov.au/legislation/prosguid.htm .
152. POEO Act, s 226.
153. P OEO Act, s 223.
154. POEO Act, s 223.
155. POEO Act, s 227, POEO Regulation, cl 82, Schedule 6.
156. POEO Act, s 148.
157. POEO Act, s 148(8).
158. POEO Act, s 147.
159. POEO Act, s 148.
160. http://www.nsw.gov.au/news/tough-new-pollution-laws-o%E2%80%99reilly-report-accepted-full
161. POEO Act, s 152.
162. POEO Act, s 153.
163. POEO Act, s 217(1).
164. Because the POEO Act lists these as 'excluded offences' and therefore does not permit other regulatory authorities to institute such proceedings: POEO Act, s 217(2), and s 218(6).
165. POEO Act, s 217(2).
166. OEO Act, s 219(1A). This provision was introduced to overturn the effect of the Court's decision in Wyong Shire Council v Thomas Hughes Homes Pty Ltd (2000) 111 LGERA 371, where the Court dismissed a prosecution for unlawfully disposing of waste by a local council because the site was a scheduled premises.
167. POEO Act, s 218(4).
168. POEO Act, s 218(6), although police can bring proceedings for excluded offences if they have permission (leave) from the Court: s 219(1A).
169. POEO Act, s 219(1).
170. POEO Act, s 219(2).
171. Land and Environment Court Act 1979, s 21(a).
172. POEO Act, s 214.
173. Land and Environment Court Act 1979, s 21(a).
174. POEO Act, s 215.
175. POEO Act, s 215(2).
176. Land and Environment Court Act 1979, s 21(a).
177. POEO Act, s 215.
178. POEO Act, s 216(1) and (2).
179. POEO Act, s 216(6).
180. POEO Act, ss 216(1), 216(2).
181. See POEO Act, Part 8.3 (Court orders in connection with offences).
182. POEO Act, s 245.
183. POEO Act, s 250(1)(a).
184. POEO Act, s 250(1)(c).
185. POEO Act, s 250(1)(e).
186. Criminal Procedure Act 1986, Chapter 4, Part 5. The Environmental Trust is established under the Environmental Trust Act 1998.
187. POEO Act, s 169.
188. POEO Act, s 169.
189. POEO Act, s 252(7).
190. POEO Act, s 252.
191. Land and Environment Court Act 1979, s 20(c).
192. POEO Act, s 253, and Land and Environment Court Act 1979, s 20(1)(c).

EDO NSW

Home | Disclaimer | Privacy | Contact Us | Support Us