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Last updated: 27 September 2008
4.1 Water, air and noise pollution
1 Overview
1.1 Protection of the Environment Operations Act 1997
Key to terms used in this Fact Sheet
‘the Act' means the Protection of the Environment Operations Act 1997 (NSW)
DECCW means the NSW Department of Environment, Climate Change and Water
Environment Minister means the NSW Minister for Climate Change and the Environment
EPA means the NSW Environment Protection Authority (an independent statutory body within DECCW )
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.
1.2 Which Minister and Department are responsible for the Act?
The Minister for Climate Change and the Environment is responsible for administering the POEO Act.2
The Environment Protection Authority3 ( EPA ) is an independent statutory body within the NSW Department of Environment, Climate Change and Water. 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 a ppropriate regulatory authority below ).4
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
The EPA is the ‘appropriate regulatory authority' for:5
Pollution licencing
Activities at schedule premises (eg heavy industrial activities) (these are listed in Schedule 1 of the POEO Act)
Activities involving the State Government or a public authority.
HOT TIP
If a premises holds a pollution licence, then the EPA is responsible for regulating those premises.
Click here to conduct a search to find out whether a particular premises holds a pollution licence
The Act adopts the ‘one premises, one regulator' rule, ie once the EPA has licenced a particular site for one medium (eg water pollution) then it becomes responsible for regulating all pollution from the premises (eg air and noise pollution).6
1.3.2 Local council responsibilities
Local councils are responsible for regulating pollution from all premises which do not hold a pollution licence (ie premises that are not listed in Schedule 1 of the POEO Act - generally small-scale industrial activities).
1.3.3 Other public authorities
Other public authorities may be designated as the appropriate regulatory authority under the POEO Act and Regulations.
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,7
The Marine Parks Authority has some responsibilities in marine parks.8
2 Pollution licences
2.1 The EPA issues pollution licences
DECCW has published a detailed ‘Guide to Licencing' to help people determine whether they need a pollution licence, and if so, how to apply for one.
Under the Act, pollution licences are called ‘environment protection licences' (called ‘pollution licences' in this Fact Sheet). The EPA issues pollution licences.9Pollution licences can be issued covering one or more forms of pollution (ie air, water and noise pollution).
2.2 Scheduled premises require a pollution licence
The EPA is required under the POEO Act to keep a public register containing information about pollution licences.10The public register is accessible on the Internet.
The public register contains:
environment protection licences
applications for new licences and to transfer or vary existing licences
Activities on scheduled premises must have a pollution licence.11Scheduled premises are those which are listed in Schedule 1 of the Act.12They generally involve heavy or high-polluting industries.
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.
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.
2.2.1 Water pollution from non-scheduled activities can be licensed
The Act permits (but does not require) a pollution licence for a non-scheduled activity.13However, 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.14
2.2.2 Offence not to have pollution licence
It is an offence to carry out an activity on scheduled premises without a pollution licence.15
The maximum penalties16 are:
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.
2.3 Do new pollution licences require environmental assessment?
Is there a list which can tell me who the appropriate regulatory authority is?
Yes. DECCW has produced a useful list of contacts to help people identify which organisation (eg EPA, a local council, or another government authority) is the appropriate regulatory authority for each type of pollution.
To go to the DECCW tables of contacts, click on the relevant link:
No, not automatically. The POEO Act does not require new pollution licences to undergo any form of environmental assessment (eg 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'17 which means that an environmental impact statement will be required under the EPA Act. (See Fact Sheet 2.2 on Development applications and consents and paragraph 5 on Environmental assessment).
2.3.1 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.18(see Fact Sheet 2.2 on Development applications and consents).
This means that once a development application is lodged for 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.19If the EPA indicates that it will not grant a licence, then development consent must be refused.20
2.3.2 Pollution licence must be given to Part 3A projects
The EPA is not allowed to refuse to grant a pollution licence if the Planning Minister has granted approval for a project under Part 3A (Major Infrastructure Projects) of the Environmental Planning and Assessment Act 1979.
2.3.3 What happens if development consent is not required?
Where an activity requires a pollution licence but does not need development consent (eg mobile waste processing or the transporting of waste,21 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 1979.22
Under Part 5, an activity which is likely to significantly affect the environment must have an environmental impact statement.23(See Fact Sheet 2.2 for more information on Part 5).
2.4 What must the EPA consider when granting a licence?
Section 45 of the POEO Act sets out the matters that the EPA must consider when deciding whether to grant a licence. These matters include:
The objectives of the EPA,24 which include the principles of ecologically sustainable development, such as the precautionary principle, inter-generational equity and the polluter-pays principle)
The pollution 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
Any environmental impact statement or species impact statement.
2.5 Public participation
2.5.1 Public register for licence applications
The EPA must publish the details of each licence application it receives on its public register.25
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 consent process.26
2.5.2 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.27The reasons must set out the environmental and other issues that the EPA took into account, and the standards or requirements that the EPA considered applicable.28
2.6 Appeals
2.6.1 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.29This 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.30
2.6.2 Can the public appeal?
Yes, but only against a legal error in the way the licence was issued.31The 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, eg a complaint that the EPA failed to take into account a relevant matter in its decision. For more information on judicial review proceedings, see Fact Sheet 2.2 section 8.3.
2.7 Licence conditions
The EPA can impose conditions on a pollution licence to prevent or reduce pollution, or the risk of pollution.32
Examples of common conditions33 include:
Limits on the types and amounts of pollution that can be discharged
Monitoring and reporting obligations
Community consultation (eg regular meetings) and complaint mechanisms (eg a complaints register)
Conditions relating to green offset schemes.34
It is an offence not to comply with the conditions of a pollution licence.35
Green offset schemes
Amendments to the POEO Act in May 2006 introduced the concept of ‘green offset schemes' and works.36
A green offset scheme is a form of emissions trading under which a group of participants carry out a specific program to restore or make good environmental damage caused by activities which are authorised by pollution licences.37
The appropriate regulatory authority (licencing authority) can impose conditions on a pollution licence in relation to a green offset scheme (eg requiring the licence holder to purchase credits in a particular green offset scheme) if there is no other way of preventing or controlling the impacts of the licenced activity.38
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.39However, the EPA must review each licence at least once every 5 years.40
The EPA must give the public notice of its intention to review a licence at least one month before the review (and not more than 6 months) by publishing a notice in a State-wide newspaper.41
2.9 Variation of licences
The EPA can vary the conditions of a licence at any time.42
Before varying a licence, the EPA must invite public submissions if:43
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.
2.10 Suspension and revocation of licences
The EPA can 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.44
The reasons for suspending a licence may include (but are not limited to):45
If the licence holder obtained it improperly
If a licence condition is breached
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.46
3 Water pollution
3.1 Offence to pollute waters
Who should I call to complain about a water pollution incident?
If you wish to report a water pollution incident, you can view the list of contacts which DECCW has produced to work out who you should call. The table shows which organisations are responsible (and their telephone numbers), according to the type or source of water pollution.
The POEO Act applies a general prohibition to water pollution, ie all water pollution is prohibited unless it is authorised in some way.
It is an offence to pollute waters without a pollution licence (maximum penalty: corporation - $1 million; individual - $250,000).47
Water pollution can also constitute a more serious pollution offence: see paragraph 7 below on Pollution offences.
3.1.1 What is ‘water pollution'?
The legal definition of ‘water pollution' is very broad.48It 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 (eg 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 (eg animal carcasses, mud, spoil from mineral processing, human excreta and urine, oil and grease, etc).49
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,50 or
There is a regulation exempting that type of water pollution (eg sewage discharge, discharges from boat engines, etc are permitted).51
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,52 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.53
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.54Scheduled premises are those which are listed in Schedule 1 of the Act.55
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.56
Who should I call to complain about an air pollution incident?
If you wish to report an air pollution incident, you can view the list of contacts which DECCW has produced to work out who to call. The table shows which organisations are responsible (and their telephone numbers), according to the type or source of the air pollution.
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 7.1.1 below).57
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,58
A breach of a pollution licence, or its conditions,59
Committing one or more of the specific air pollution offences listed in the POEO Act.60These include:
Failing to maintain or operate industrial plant or equipment in a proper and efficient manner,61
Failing to carry out maintenance work on plant in a proper and efficient manner,62
Failing to deal with materials in a proper and efficient manner (eg allowing raw materials, by-products or waste to smell),63
Carrying out an activity, or operating plant, so as to emit pollution in excess of prescribed rates or concentrations 64 (see paragraph below).
4.1.1 Prescribed rates or concentrations of air impurities
Regulations made under the POEO Act establish specific standards above which listed pollutants (eg solid particles, smoke, dioxins, etc) must not be emitted for both scheduled65 and non-scheduled premises.66
It is an offence to carry out an activity which causes the emission of air pollution in excess of these standards. 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.
4.2 Burning of fires and smoke
4.2.1 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:67
the fire is prohibited by an order of the EPA (see paragraph below), or
air pollution from the fire is injuring the health of somebody or is likely to cause serious discomfort or inconvenience to someone.
4.2.2 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 to air pollution.68The order must be published in a State-wide newspaper or broadcast on the radio. It is an offence not to comply with an order: maximum penalty $3,300.69
4.2.3 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.70Schedule 8 of the Regulations lists those local government areas to which this prohibition applies.71
4.2.4 Smoke abatement notices
An authorised officer can issue a smoke abatement notice directing the occupier of premises to ensure that excessive smoke is not emitted from the chimney for at least 21 days.72
Who is an ‘authorised officer'?
The POEO Act gives a range of powers to authorised officers. The EPA and local councils can appoint certain people to act as ‘authorised officers' under the POEO Act.73 All authorised officers must carry an identification card and must produce it if asked to do so.74
DECCW has published a detailed guide explaining who is an authorised officer and what powers authorised officers have to respond to pollution incidents: see Powers of Authorised Officers – A guide to your powers under environment protection legislation (May 2006).
It is an offence for an occupier of scheduled premises (ie premises with a pollution licence) to emit ‘offensive odours' other than in accordance with their pollution licence.75
An ‘offensive odour' is an odour which is harmful to a person or which interferes unreasonably with the comfort or repose of a person outside the premises from which it is emitted.76
4.3.2 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 (eg failing to operate plant in a proper and efficient manner:77 see paragraph 4.1 on Air pollution offences above).
4.4 Smoky vehicles
The POEO Act and Regulations limit the amount of exhaust which a vehicle is permitted to emit.78A motor vehicle must not emit exhaust (ie 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.79
It is an offence for an owner of a motor vehicle to emit excessive air impurities while the vehicle is being used: maximum penalty for a corporation: $4,400, and for an individual $2,200.80
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.81 If the owner fails to comply with the notice, they may be charged with a more serious offence.
Reporting smoky vehicles to DECCW
Vehicles that emit exhaust which is continuously visible for more than 10 seconds can be reported to the DECCW Environment Hotline on 131 555 (previously called the EPA Pollution Hotline).
Before making a report you should:
Be satisfied that you have correctly identified the vehicle generating the visible emissions;
Be satisfied that the emissions are visible not just because of heat or the condensation of water vapour; and
Be sure that the emissions are continuously visible for more than 10 seconds.
You should record the following details:
The length of time (in seconds) that the visible emissions were observed
The registration number of the motor vehicle under observation
The type of motor vehicle under observation
The colour and darkness, in your opinion, of the air impurities emitted, and
The location, date and approximate time of day that you made the observation.
Noise pollution is regulated under the POEO Act and Regulations.82
Who should I call to complain about noise pollution?
Complaints regarding noisy items such as lawn mowers, burglar alarms and motor vehicles should be directed towards the appropriate regulatory authority.
If you wish to report or complain about noise pollution, you can identify the appropriate regulatory authority by viewing the list of contacts which DECCW has produced. The table shows which organisations are responsible (and their telephone numbers) according to the type or source of the noise pollution.
Click here to go to DECCW's list of contacts for reporting noise pollution
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:83 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.84
To cause noise from industrial premises that deals with materials (eg raw materials) because of a failure to deal with those materials in a proper and efficient manner.85
The maximum penalties for each of these noise offences are: corporation - $1 million; or an individual - $250,000.
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.
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.
5.2.1 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.86
The appropriate regulatory authority will usually be the EPA or the local council. (To work out who is the appropriate regulatory authority, see paragraph 1.3 above - Who is the appropriate regulatory authority?)
It is an offence to breach a noise control notice: maximum penalty for a corporation, $60,000; for an individual, $30,000.87A person who receives a noise control notice can appeal against the notice to the Land and Environment Court within 21 days88 (or 7 days if it concerns an animal).89
5.2.2 Noise abatement directions: issued by authorised persons
A noise abatement direction enables action to be taken to control temporary ‘offensive noise'.90
An authorised person (including a police officer) can issue a noise abatement direction directing a person to stop making offensive noise.91The officer can issue the notice if it appears that offensive noise has been emitted at any time within the past 7 days.92
An authorised person is:93
A police officer94
A council officer95
An officer of the EPA,96 or
In relation to vessels in navigable waters, an officer or employee of the Waterways Authority.97
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): maximum penalty $3,300.98
Police have the power to seize equipment from a person who is breaching a noise abatement direction.99Any equipment must be returned or released within 28 days.100
5.2.3 Noise abatement orders: issued by the Local Court
A person who is affected by offensive noise101 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).102
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.103
A person against whom a noise abatement order is made can appeal against the order to the Land and Environment Court within 21 days.104
A noise abatement order cannot be issued against:105
the State or a public authority, or
premises which have a pollution licence.
It is an offence to breach a noise abatement order: maximum penalty $3,300.106
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.107
5.3.1 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.108
5.3.2 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 (eg not before 8 am, or after 8 pm), during which certain noisy things must not be used.
The Regulations cover things such as:
power tools (including lawn mowers, lawn trimmers, leaf blowers, chainsaws, air compressors) and other equipment (including swimming pool pumps)109
musical instruments and sound equipment110
air conditioners and heat pump water heaters,111and
The POEO Act contains three different enforcement mechanisms:
Pollution notices
Criminal prosecutions
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.
Who can issue a pollution notice?
The appropriate regulatory authority is responsible for issuing pollution notices (except for prohibition notices, which are issued by the Environment Minister). In most cases, this will either be the EPA or the local council. Who the appropriate regulatory authority is will depend upon the type of premises which is causing the pollution.
To work out who the appropriate regulatory authority is, see paragraph 1.3 above.
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:113
Clean-up notices
Prevention notices, and
Prohibition notices.
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).114The notice can be issued to either the occupier of premises causing the pollution or 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).115
The EPA has power to issue a clean-up notice to a public authority, such as a local council, suspected of creating a pollution incident.116
It is an offence not to comply with a clean-up notice: the maximum penalty for a corporation $1 million; or for an individual $250,000.117
6.2 Prevention notices
If an activity is being carried out in an environmentally unsatisfactory manner (eg 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'.118The notice can direct a person to take preventative action (eg to cease using a plant, or to repair equipment) to avoid causing further environmental damage.119
The notice can be issued to either the occupier of premises or the person carrying on the activity, or both.120
It is an offence not to comply with a prevention notice: the maximum penalty for a corporation $1 million; or for an individual $250,000.121
6.3 Prohibition notices
For more serious pollution incidents, the EPA can recommend that the Environment Minister issue a ‘prohibition notice'.122
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.123
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.124
It is an offence not to comply with a prohibition notice: the maximum penalty for a corporation $1 million; or for an individual $250,000.125
Tips for complaining about a pollution incident
If you are concerned about a pollution incident, you should first contact the individual or company causing the pollution and request an explanation and ask that they fix the problem.
You should also report the pollution incident to the DECCW Environment Hotline on 131 555 (previously called the EPA Pollution Hotline). Keep notes of your discussion and record the name of the person who takes your call.
If DECCW does not resolve the problem to your satisfaction, you should:
Obtain a copy of the development consent for the premises from your local council and check whether the conditions of consent include pollution control
Obtain a copy of the pollution licence for the premises from the EPA's public register (on the Internet), and check whether the licence authorises the pollution
Obtain copies of any monitoring reports which the polluter may have submitted to the EPA (again, from the public register on the Internet) and compare them with the pollution levels permitted under the pollution licence
Contact the environment groups who are interested in preventing pollution, such as the Total Environment Centre in Sydney
Contact the Environmental Defender's Office free Environmental Law Advice Line on (02) 9262 6989 or 1800 626 239 and obtain some legal advice about your other options.
7 Enforcement: 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.
7.1 Criminal offences
EPA Guide to notices
The EPA has published a ‘ Guide to notices'. This is a guide to the powers which are available to the EPA and other regulatory authorities (such as local councils) when issuing pollution notices under the Protection of the Environment Operations Act 1997. The Guide can be downloaded from the EPA's website.
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:126
Tier 1 – most serious
Tier 2 – for serious, mid-range offences
Tier 3 – least serious, uses ‘on-the-spot' penalty notices.
7.1.1 Tier 1 offences
Tier 1 offences are the most serious offences and involve willful or negligent activities which harm, or are likely to harm, the environment.
Examples of Tier 1 offences include willfully or negligently:
Disposing of waste in a manner that harms or is likely to harm the environment.127
Allowing a substance to leak, spill or otherwise escape in a manner that harms or is likely to harm the environment.128
Emitting an ozone-depleting substance in a manner that harms or is likely to harm the environment.129
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.130
The maximum penalties for Tier 1 offences are:131
For a corporation:
Willful offence: $5 million, or
Negligent offence: $2 million.
For an individual:
Willful offence: $1 million or 7 years' imprisonment, or both, or
Negligent offence: $500,000 or 4 years' imprisonment, or both.
Case study: Polluter sentenced to 12 months imprisonment
EPA v Gardner [1997] NSWLEC 169
Only one person has ever received a term of imprisonment for a breach of the POEO Act.132
Charles Gardner was convicted of wilfully disposing of waste in a manner likely to harm the environment. Over a period of about 2 ½ years, Gardner had secretly pumped out about 130,000 litres per week of untreated sewerage from his caravan park into the Karuah River on the NSW North Coast. He did this to avoid the cost of lawfully disposing of the waste (about $140,000).
The Court fined him the maximum amount (at that time) for an individual of $250,000, sentenced him to 12 months' imprisonment, and ordered him to pay the Prosecutor's costs of $170,000.
Tier 2 offences are serious offences which are not Tier 1 offences.133
Examples of Tier 2 offences include:
Carrying out an activity on scheduled premises without a pollution licence,134
Failing to comply with a pollution notice (environment protection notice), such as a clean-up or prevention notice,135
Causing water pollution,136
Emitting air impurities in excess of prescribed concentrations,137
Emitting offensive odours from schedule premises,138
Permitting land to be used unlawfully as a waste facility,139
Failing to notify the appropriate regulatory authority of a notifiable pollution incident (see paragraph 7.2 below on Duty to notify pollution incidents ).140
Tier 2 offences are generally considered to be ‘strict liability' offences.141This 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.142
The maximum penalties for Tier 2 offences are:143
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.
7.1.3 Tier 3 offences
Tier 3 offences are the least serious of the three categories of offences.
Tier 3 offences are those which are listed under Schedule 1 of the Protection of the Environment Operations (Penalty Notices) Regulation 2004. They are Tier 2 offences for which the regulations permit a penalty notice to be issued.144
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.145
Tier 3 offences are absolute liability offences, for which there are no defences.
Enforcement officers146 (usually an EPA or local council employee) have a discretion as to whether to serve a penalty notice. A person has 28 days within which to pay the fine under a penalty notice.147Alternatively, the person can elect not to pay a penalty notice and have the charge dealt with by a Court instead.148
Penalties vary for Tier 3 offences, with the maximum penalty for an individual being $1,500, and a corporation $5,000.149
7.2 Duty to notify pollution incidents
Polluters have a statutory obligation to report all serious pollution incidents to the appropriate regulatory authority as soon as practicable after they become aware of an incident.150 (See paragraph 1.3 for more information on the appropriate regulatory authority.)
The types of incidents which must be reported are those which cause (or threaten to cause) material harm to the environment (ie serious harm to people or the environment, or property damage of more than $10,000).151
The duty to notify applies to the person carrying out the activity, the occupier of premises, employers and employees (who must notify their employer, and then the EPA if their employer cannot be contacted).152
It is an offence to fail to notify the appropriate regulatory authority of a notifiable event (maximum penalties: for a corporation - $1 million; for an individual, $250,000).153A person must notify even if they may incriminate themselves or their company.154
The EPA has a website which contains more information about the duty to notify, including whom to notify, when to notify, and examples of notifiable events.
Criminal prosecutions, which usually result in a fine or other coercive penalty, are different to taking civil action under the POEO Act (eg declarations, injunctions): see para 8 below for civil offences.
7.3.1 Environment Protection Authority
The EPA can prosecute any offence under the POEO Act and its regulations.155
The EPA has principal responsibility for prosecuting offences which relate to:156
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.
Local councils can also institute proceedings under the POEO Act if they are the appropriate regulatory authority for the matter: see paragraph 1.3 for the definition of appropriate regulatory authority.157
In other words, local councils are responsible for instituting proceedings relating to pollution from non-scheduled premises: see paragraph 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.158
7.3.3 Police officers
Police officers can institute proceedings for:159
A noise pollution offence
A littering offence
Minor motor vehicle offences.
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 1.3.1 above on EPA.160
7.3.4 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.161
The Court can only grant permission if the EPA has failed to take action itself, the EPA has been notified of the proceedings, and there is a prima facie (strong) case that an offence has been committed.162
7.4 Which Court hears pollution prosecutions?
Tier 1 offences (most serious) are dealt with by the Land and Environment Court (in Class 5)163 or the Supreme Court.164
Tier 2 offences (mid range offences) are heard before the Land and Environment Court (in Class 5)165 or a Local Court.166However, if the Local Court hears the matter, the maximum fine that it can impose is $22,000, despite the fact that a higher penalty may be permitted under the POEO Act.167
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)168 or a Local Court.169
7.5 Time limits
Proceedings for serious offences (prescribed offences) must be commenced within 3 years of the offence being committed, or of the date that the matter came to the attention of an authorised officer.170Prescribed offences include Tier 1 offences, offences relating to pollution licences, unlawfully transporting waste or unlawfully permitting land to be used as a waste facility.171
For all other offences, the prosecution must be commenced within 12 months.172
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:173
Make good any damage to land (restoration order),174
Publicise the offence,175
Carry out an environmental project in a public place for the public benefit,176
Pay a specified amount to an environmental organisation, either for a project or for general environmental purposes,177
Pay the prosecutor's legal costs.178
7.6.1 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.179
It is a defence if the director or manager:
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.180
Case study: Court orders polluter to pay for weed management at Towra Point
EPA v Caltex Refineries NSW Pty Ltd [2008] NSWLEC 194
In 2008, the EPA prosecuted Caltex Refineries for releasing odour from its oil refinery in Kurnell, NSW. The odour incident occurred over a few days during December 2006. About 35 complaints were made by residents of a very strong, unpleasant odour like sulphur.
Caltex pleaded guilty to the charge of failing to operate its plant in a proper and efficient manner, as required by the conditions of its pollution licence.
In lieu of imposing a fine of $78,000, the Court ordered Caltex to pay the Parks and Wildlife Group (part of the NSW Department of Environment, Climate Change and Water) $78,000 to be used for the implementation of the Weed Management Strategy for Towra Point Nature Reserve.
The POEO Act contains three different enforcement mechanisms:
Pollution notices
Criminal prosecutions
Civil action.
This section deals with the third of these: Civil action.
8.1 What is civil enforcement action?
Members of the public can take legal action to stop environmental harm
The POEO Act allows anyone to bring a civil action (civil proceedings) in the Land and Environment Court if they think that any law (not just the POEO Act) is being broken (or is about to be broken) and the breach is likely to cause harm to the environment.184
This provides a broad right for the public to take action to stop environmental harm if the responsible government agency has failed to take action.
Contact the Environmental Defender's Office for legal advice on (02) 9262 6989 if you are concerned about a breach of the law and wish to consider taking legal 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 (eg 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 convenience, rather than beyond a 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 a pollution licence181
An injunction restraining a person from carrying out an unlawful activity
An order that a person fix any damage to the environment (remediation order).
8.2 Who can take civil action under the POEO Act?
Any person can bring civil proceedings under the POEO Act.182This 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.183
See also the Protection of the Environment Operations (General) Regulation 1998
Allocation of the Administration of Acts (No 2) 2008 (NSW).
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.
POEO Act, s 6.
POEO Act, s 6(2).
POEO Act, s 44 (Integration of licencing)
POEO Act, s 263 and s 275. See definition of ‘marine authority' in POEO Act Dictionary, and POEO Regulation 1998, cl 64A..
POEO Regulation 1998, cl 64.
POEO Act, s 6(2)(a).
POEO Act, s 308.
POEO Act, s 48
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.
POEO Act, s 43(d).
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.
POEO Act, s 48.
POEO Act, s 48(2).
‘Designated developments' are those which are listed in Schedule 3 of the Environmental Planning and Assessment Regulation 2000.
Environmental Planning and Assessment Act 1979, s 91. See also POEO Act, s 51.
Environmental Planning and Assessment Act 1979, s 91A.
Environmental Planning and Assessment Act 1979, 91A(4).
POEO Act, Schedule 1, Part 2, lists some activities which require a pollution licence which are not premises-based.
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.
Environmental Planning and Assessment Act 1979, s 112.
Protection of the Environment Administration Act 1991, s 6.
POEO Act, s 308(2)(a).
POEO Act, s 45(l).
POEO Act, s 61
Protection of the Environment Operations (General) Regulation 1998, cl 46(1).
POEO Act, s 287(1), and Land and Environment Court Act 1979, s 17(a).
POEO Act, s 287(1).
POEO Act, s 252, and Land and Environment Court Act 1979, s 20(1)(ci).
POEO Act, s 63.
POEO Act also lists some other common conditions: see s 66 – 76.
POEO Act, s 69(b).
POEO Act, s 64.
Part 9.3B (Green offsets) was inserted into the POEO Act by the Protection of the Environment Operations Amendment Act 2005. The new provisions regarding Green offsets came into force on 1 May 2006. See also Protection of the Environment Operations (General) Regulation 1998, cl 57T which sets out the requirements for green offset schemes and works to be evaluated.
POEO Act, s 295O.
POEO Act, s 295N.
POEO Act, s 77.
POEO Act, s 78(1).
POEO Act, s 78(2). Failure of the EPA to publish notice of an intended review cannot be challenged in court. However, it must be reported to the Board of the EPA: see POEO Act, s 78(3) and (5).
POEO Act, s 58(4).
POEO Act, s 58(6).
POEO Act, s 79(4).
POEO Act, s 79(5).
POEO Act, s 82.
POEO Act, s 120.
‘Water pollution' is defined in the Dictionary of the POEO Act.
See the list of substances in Schedule 3, Protection of the Environment Operations Regulation 1998, cl 52, and POEO Act, Definition ‘water pollution' sub paragraph (c).
POEO Act, s 122.
POEO Act, s 121, Protection of the Environment Operations (General) Regulation : see cl 54 (discharges of water from Victoria into River Murray), 55 (discharges into sewer), 55A (certified on-board sewage treatment systems), 56 (boat engines), and 56A (cold water releases).
POEO Act, s 43(d).
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.
POEO Act, s 48
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.
See the definitions of ‘air pollution' and ‘air impurity' under the Definitions section of the POEO Act.
The general Tier 1 offence of willfully or negligently permitting any substance to leak 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.
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 X.X above.
POEO Act, s 48 and s 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).
POEO Act, s 124.
POEO Act, s 125.
POEO Act, s 126.
POEO Act, s 128
Protection of the Environment Operations (Clean Air) Regulations 2002 : cl 27 and 28, Schedules 2, 3 and 4.
Protection of the Environment Operations (Clean Air) Regulations 2002 : cl 33, and Schedule 6.
POEO Act, s 134. Maximum penalty $3,300; the Crimes (Sentencing Procedure) Act 1999 defines a penalty unit as $110: s 17.
POEO Act, s 129.
POEO Act, s 133.
POEO Act, s 135. The Crimes (Sentencing Procedure) Act 1999 defines a penalty unit as $110: s 17.
Protection of the Environment Operations (Clean Air) Regulations 2002 : Division 3, cl 6E, 6F and 6G, and Schedule 8.
Protection of the Environment Operations (Clean Air) Regulations 2002, Sch 8.
POEO Act, s 135B.
POEO Act, Dictionary definition ‘authorised officer'. ‘Authorised officers' are appointed under Part 7.2, s 187 of the POEO Act.
POEO Act, s 189.
POEO Act, s 129.
See the definition of ‘offensive odour' in the Dictionary of the POEO Act.
POEO Act, s 124.
POEO Act, s 154(2) defines “emits excessive air impurities”, and see Protection of the Environment Operations (Clean Air) Regulations 2002 : clauses 8 and 9.
Protection of the Environment Operations (Clean Air) Regulations 2002, cl 8.
Protection of the Environment Operations (Clean Air) Regulations 2002, cl 9.
POEO Act, s 161.
POEO Act, Part 5.5, s 136 – 141; and Protection of the Environment Operations (Noise Control) Regulation 2008.
POEO Act, s 48.
POEO Act, s 139.
POEO Act, s 140.
POEO Act, Part 8.6, s 264.
POEO Act, s 265.
POEO Act, s 290.
Protection of the Environment Operations (General) Regulation 1998, cl 59.
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 outside the premises.
POEO Act, Part 8.6, Division 3, s 275 – 276.
POEO Act, s 276.
POEO Act, s 275.
If a police officer is denied entry to premises to give a noise abatement direction, they can obtain a warrant from a magistrate authorizing them to enter the premises: POEO Act, s 280 and s 281; and Protection of the Environment Operations (General) Regulation 1998, cl 58, Schedule 4.
POEO Act, s 187(2).
POEO Act, s 187(1).
POEO Act, s 275(b).
POEO Act, s 277(2) and (4). The Crimes (Sentencing Procedure) Act 1999 defines a penalty unit as $110: s 17.
POEO Act, s 282.
POEO Act, s 282(4).
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 outside the premises.
POEO Act, Division 2, s 268.
POEO Act, s 268(4).
POEO Act, s 290.
POEO Act, s 270.
POEO Act, s 269. The Crimes (Sentencing Procedure) Act 1999 defines a penalty unit as $110: s 17.
POEO Act, s 136, and the Protection of the Environment (Noise Control) Regulation 2008.
POEO Act, s 136.
Protection of the Environment (Noise Control) Regulation 2008, cl 50.
Protection of the Environment (Noise Control) Regulation 2008, cl 51.
Protection of the Environment (Noise Control) Regulation 2008, cl 52.
Protection of the Environment (Noise Control) Regulation 2008, cl 53.
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.
POEO Act, Part 4.2 (Clean-up notices): s 91.
POEO Act, s 93.
POEO Act, s 92.
POEO Act, s 91(5).
POEO Act, Part 4.3 (Prevention notices): s 96.
POEO Act, Part 4.2 (Clean-up notices): s 91.
POEO Act, s 96(2).
POEO Act, s 97.
POEO Act, Part 4.4, s 101.
POEO Act, Part 4.4, s 101(1).
POEO Act, s 101(2).
POEO Act, s 102.
POEO Act, s 114.
POEO Act, s 115.
POEO Act, s 116.
POEO Act, s 117.
POEO Act, s 118.
POEO Act, s 119, plus daily penalties for ongoing offences.
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.
POEO Act, s 114(2).
POEO Act, s 48.
POEO Act, s 91(5), s 97 and s 102.
POEO Act, s 120.
POEO Act, s 128.
POEO Act, s 129.
POEO Act, s 144.
POEO Act, s 148 and s 152.
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.
He Kaw The v The Queen (1985) 157 CLR 523.
POEO Act, s 123, s 132, s 142A.
POEO Act, s 114 and s 222, Protection of the Environment Operations (Penalty Notices) Regulation 2004, cl 4.
EPA Prosecution Guidelines, Section E, paragraph 12.
POEO Act, s 226. The Protection of the Environment Operations (Penalty Notices) Regulation 2004 lists which enforcement officers (eg EPA, local council, etc) are permitted to issue penalty notices for each different offence: cl 5 and Schedule 1.
POEO Act, s 223.
POEO Act, s 223.
POEO Act, s 227. The penalty for each offence is listed in Schedule 1 of the Environment Operations (Penalty Notices) Regulation 2004: cl 6.
POEO Act, Part 5.7, s 147 – 153.
POEO Act, s 147, and 148(1). Pollution incidents involving only odour do not need to be reported: s 148(7).
POEO Act, s 148.
POEO Act, s 152.
POEO Act, s 153.
POEO Act, s 217(1).
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).
POEO Act, s 217(2).
POEO 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.
POEO Act, s 218(4).
POEO Act, s 218(6), although police can bring proceedings for excluded offences if they have permission (leave) from the Court: s 219(1A).
POEO Act, s 219(1).
POEO Act, s 219(2).
Land and Environment Court Act 1979, s 21(a).
POEO Act, s 214.
Land and Environment Court Act 1979, s 21(a).
POEO Act, s 215.
POEO Act, s 215(2).
Land and Environment Court Act 1979, s 21(a).
POEO Act, s 215.
POEO Act, s 216(1) and (2).
POEO Act, s 216(6).
POEO Act, s 216(1) and (2).
See POEO Act, Part 8.3 (Court orders in connection with offences).
POEO Act, s 245.
POEO Act, s 250(1)(a).
POEO Act, s 250(1)(c).
POEO Act, s 250(1)(e).
Criminal Procedure Act 1986, Chapter 4, Part 5.
POEO Act, s 169.
POEO Act, s 169(1).
POEO Act, s 252(7).
POEO Act, s 252.
Land and Environment Court Act 1979, s 20(ci).
POEO Act, s 253, and Land and Environment Court Act 1979, s 20(1)(ci).
