The information contained in this fact sheet is current as at 18 October 2006.

Topic 3 - Pollution

3.1. Water, Air and Noise Pollution

The Protection of the Environment Operations Act (POEO Act) regulates water, air, and noise pollution in New South Wales. The Act is administered by the Minister for the Environment. [1]

The Protection of the Environment Operations Act:

• empowers regulatory authorities to issue pollution licences and pollution notices;
• creates a range of pollution offences and penalties;
• empowers regulatory authorities to take legal action to enforce the law; and
• empowers members of the public to take legal action to enforce the law.

Under the POEO Act, responsibility for implementation of pollution laws in New South Wales is shared by both local councils and the Environment Protection Authority (EPA), an agency within the Department of Environment and Conservation. [2]

The POEO Act assigns responsibility for the regulation of pollution to the ‘appropriate regulatory authority', which is determined according to the type of premises from which the pollution emanates. [3]

The EPA is the appropriate regualtory authority for all activities listed in Schedule 1 of the POEO Act (see Section 3.1.1 – Pollution Licences for more information about ‘scheduled activities') and for all activities involving the State government or a public authority. [4]

Local councils are the appropriate regulatory authority in relation to all non-scheduled premises in their area – that is, those premises in their area which do not require a pollution licence. [5]

Other public authorities may be designated as the appropriate regulatory authority under the regulations. [6] For example:

• the Marine Parks Authority is declared to be the appropriate regulatory authority for non scheduled activities in marine parks (except those carried on by a State or public authority); [7]
• the Waterways Authority is the appropriate regulatory authority for non-scheduled activities involving boats (unless the activity is carried on by a State or public authority); [8] and
• police officers are empowered to issue noise abatement directions for noise offences, other than those relating to vessels (for which the Marine Parks Authority is the appropriate regulatory authority [9]) (see Section 3.1.2.5 – Noise Abatement Directions ). [10]

3.1.1 Pollution Licences

The Environment Protection Authority is empowered to issue pollution licences, called ‘environment protection licences', to authorise the carrying out of certain polluting activities which are called ‘scheduled activities'. [11]

To determine whether an activity is a ‘scheduled activity' which requires a pollution licence, you should refer to the list of activities contained in Schedule 1 of the Protection of the Environment Operations Act.

Tip: The full text of NSW legislation is available online at: www.legislation.nsw.gov.au

Examples of scheduled activities include:

• chemical industries;
• extractive industries;
• livestock intensive industries;
• mines and mineral processing works;
• petroleum production works;
• sewage treatment systems; and
• waste disposal facilities.

For each type of activity, Schedule 1 sets criteria for determining whether the activity 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, a waste incineration facility will require a pollution licence if it treats or processes:

• any quantity of chemical waste;
• any quantity of cytotoxic waste;
• more than 25 tonnes per year of clinical waste;
• more than 25 tonnes per year of quarantine waste; or
• more than 1 tonne per hour of any other type of waste. [12]

It is an offence to carry out a scheduled activity without an environment protection licence. [13] In the case of a corporation the maximum penalty for doing so is $1,000,000 with a possible further penalty of $120,000 for each day the offence continues. In the case of an individual the maximum penalty is $250,000 with a possible additional $60,000 for each day the offence continues. [14]

An environment protection licence may also be issued for non-scheduled activities for the purpose of regulating water pollution. [15] It is an offence to pollute water without an environment protection licence or exemption under the Regulations. [16]

Pollution Licences and Environmental Assessment

There are no separate environmental assessment provisions under the POEO Act for pollution licences. Instead, the legislative scheme relies upon the environmental assessment provisions in Parts 4 and 5 of the Environmental Planning and Assessment Act 1979.

Most new activities which require a pollution licence will also require development consent under Part 4 of the Environmental Planning and Assessment Act. These activities will also often be identified as ‘designated development' under Schedule 3 of the Environmental Planning and Assessment Regulations, which means that an environmental impact statement will be required (see Section 2.1.2.3– Environmental Impact Assessment ).

Development which requires both development consent and a pollution licence will be also be caught by the ‘integrated development' provisions of the Environmental Planning and Assessment Act (see Section 2.1.2.1 – Development Applications). [17]

Once a development application is lodged for a development which requires a pollution licence, the consent authority is required to obtain the general terms of any approval proposed to be granted by the EPA before granting development consent. [18] Any development consent subsequently granted by the consent authority must be consistent with those general terms of approval.

In some instances a pollution licence will be required for an activity which does not require development consent under Part 4 of the Environmental Planning and Assessment Act (for example, mobile plant scheduled activities and mobile waste processing, which do not relate to development on land, use of land or work in relation to land).

In such cases, the environmental impacts of the activity may require environmental assessment under Part 5 of the Environmental Planning and Assessment Act (see Section 2.1.2.3 – Environmental Impact Assessment ). Under Part 5, if such an activity is likely to significantly affect the environment, the proponent of the activity must submit an environmental impact statement (EIS) to the EPA, and the EPA must put the EIS on public exhibition and invite submissions from the public, prior to deciding whether to grant a pollution licence. [19]

3.1.1.1 Issue of Environment Protection Licences

In deciding whether or not to issue a licence, the appropriate regulatory authority (usually the EPA) [20] must consider:

• the pollution likely to be caused by the activity;
• the likely impact of the pollution on the environment;
• practical measures to prevent or mitigate the pollution;
• practical measures to protect the environment from damage by the pollution;
• any relevant green offset scheme, green offset works or tradeable emissions scheme or other scheme involving economic measures;
• whether the applicant is a fit and proper person to hold the licence;
• the licence application and associated documents; and
• the principles of ecologically sustainable development. [21]

The Environment Protection Authority must consider public submissions received under the POEO Act in connection with the licence application, but there is no requirement to advertise the licence application. [22]

If the activity also requires a development application, [23] the Environment Protection Authority must consider any submissions made by the public under the Environmental Planning and Assessment Act in connection with the polluting activity during the development assessment process. [24]

Any person can write to the EPA to request a statement of the reasons why a pollution licence was either granted or refused, and the EPA must provide such reasons. [25] Those reasons must set out the significant environmental or other issues that the EPA took into account in making its decision and any significant environmental outcomes, standards or requirements that the EPA considered applicable to the activity the subject of the application and that the authority took into account in making its decision on the application. [26]

The applicant for a pollution licence may appeal to the Land and Environment Court in relation to the merits of the EPA decision to refuse the application or to impose conditions on the licence (this is known as a merits appeal or a Class 1 appeal). [27]

The public has no right to bring a merits appeal against a decision to grant a licence (that is, whether or not it was a good decision to grant the licence). However, any person can bring judicial review proceedings to challenge the validity of the decision-making process undertaken by the EPA in granting a pollution licence, such as a failure to take into account a relevant consideration (this known as judicial review or a Class 4 appeal). [28]In addition, any person may bring proceedings in the Land and Environment Court to remedy or restrain a breach of the POEO Act, subject to the EPA failing to take action. [29]

3.1.1.2 Environment Protection Licence Conditions

The Environment Protection Authority can impose conditions on an environment protection licence to prevent or reduce pollution or the risk of pollution. [30]

Examples of common conditions include:

• limits on the types and quantities of pollution;
• monitoring and reporting requirements; and
• community consultation and complaints mechanisms. [31]

Failure to comply with the conditions of an environment protection licence is an offence. [32]

Tip: The full text of all environmental protection licences issued in New South Wales is available online on the Environment Protection Authority website: www.environment.nsw.gov.au

3.1.1.3 Review of Licences

Once an environment protection licence comes into force, it remains in force indefinitely until it is suspended, revoked or surrendered. [33] However, the Environment Protection Authority is required to review each licence at least once every five years. [34] Public notice of a proposed licence review must be published by the EPA in a statewide newspaper at least one month before, and not more than six months before, the review is undertaken. [35]

3.1.1.4 Variation of Licences

The Environment Protection Authority may vary the conditions of a licence at any time during its currency. [36] Public submissions must be invited and considered if:

• the proposed variation of the licence 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. [37]

3.1.1.5 Suspension and Revocation of Licences

The Environment Protection Authority may suspend or revoke an environment protection licence. Reasons for suspending or revoking a licence include, but are not limited to:

• the fact that the licence was obtained improperly,
• breach of licence conditions;
• failure to pay licence fees; and
• the licence holder no longer being a fit and proper person in the opinion of the EPA. [38]

The Minister for the Environment may suspend or revoke an environment protection licence if the licence holder is convicted of a major pollution offence. [39]

3.1.2 Pollution Notices

The Environment Protection Authority may issue an ‘environment protection notice' (commonly known as a pollution notice), requiring a person to take certain action to remedy or prevent pollution. [40]

A local council may also issue a pollution notice. However, a council cannot issue a notice if:

• the relevant activity is a scheduled activity;
• the relevant premises are already subject to an environment protection licence;
• the relevant activity is being conducted by the State or a public authority; or
• another public authority has been declared to be the appropriate regulatory authority. [41]

In the above situations, only the EPA can issue a pollution notice.

Types of pollution notices include:

• clean up notices;
• prevention notices; and
• prohibition notices. [42]

In order to control noise pollution, regulatory authories may also issue:

• noise control notices; and
• noise abatement directions. [43]

3.1.2.1 Clean Up Notices

If a pollution incident has occurred, the Environment Protection Authority, or the relevant local council, may issue a notice to a person requiring that person to take clean-up action, if that person is:

• the occupier of the premises at which the pollution event occurred (‘the occupier'); or
• reasonably suspected of causing the pollution incident (‘the polluter'). [44]

The EPA will be the authority responsible for issuing the clean-up notice in relation to EPA-licensed activities, which are listed in Schedule 1 of the POEO Act (see Section 3.1.1 – Pollution Licences for more information about scheduled activities).

The relevant local council will be the authority responsible for issuing a clean-up notice in relation to non-scheduled premises, i.e. those which do not need a pollution licence. In an emergency, the EPA can issue a clean-up notice even if it is not the appropriate regulatory authority. [45]

The notice may require the person to:

• take action to prevent, minimise, remove, diperse, destroy or mitigate the pollution;
• ascertain the nature and extent of the pollution; and
• prepare and carry out a remedial plan of action. [46]

Failure to comply with a clean-up notice is an offence. [47]

The cost of the clean up is borne by the person receiving the notice. If the person who received the notice complies with the notice, but was not the person who caused the pollution, they may go to court to recover the cost of the clean up from the person who caused the pollution. [48]

The Environment Protection Authority may also direct a public authority, such as a local council, to undertake clean up action. [49] If the public authority complies with the notice, it may issue a ‘compliance cost notice', requiring the occupier or polluter to pay all reasonable clean up costs. [50]

3.1.2.2 Pollution Prevention Notices

The Environment Protection Authority, or the relevant local council, may issue a notice directing a person to carry out an activity in an environmentally satisfactory manner, where the regulatory authority reasonably suspects that the activity:

• is being carried out in breach of the conditions of a pollution licence;
• is being carried out in a manner that causes, or is likely to cause, a pollution incident;
• is not being carried out using practicable means to prevent, control or minimise pollution; or
• is not being carried out in accordance with good environmental practice. [51]

Examples of action which may be required by a prevention notice include:

• installing, modifying or maintaining pollution control equipment;
• ceasing an activity or carrying on an activity in a particular manner; or
• preparing and implementing a plan of action to control, prevent or minimise pollution. [52]

Failure to comply with a prevention notice is an offence. [53]

3.1.2.3 Prohibition Notices

On the recommendation of the Environment Protection Authority, the Minister for the Environment may issue a notice requiring a person to cease carrying on an activity, on the basis that the emission or discharge of pollutants caused by the activity:

• is likely to cause harm to the environment;
• is likely to be injurious to the environment; or
• is likely to cause serious discomfort or inconvenience to members of the public. [54]

Failure to comply with a prohibition notice is an offence. [55]

3.1.2.4 Noise Control Notices

A noise control notice may be issued to prohibit the carrying out of an activity, or the use of an object, that emits noise above the level specified in the notice. Notices are issued to the occupier of the premises concerned, or to the person carrying on the activity or using or operating (or proposing to use or operate an object) at any premises. [56]

Noise control notices may be issued by the “appropriate regulatory authority”, discussed in Section 3.1.1 above.

It is an offence to fail to comply with a noise control notice if the emission of noise was detectable from outside the premises without the aid of an instrument, machine or device. [57]

3.1.2.5 Noise Abatement Directions

A noise abatement direction enables action to be taken to control temporary ‘offensive noise'. Offensive noise is noise which, because of its level, character or the time that it is made, is likely to interfere with the comfort of, or interferes unreasonably with, a person who is outside the premises from which the noise is emitted. [58]

If it appears to an ‘authorised person' that offensive noise is being or has been emitted from any premises in the last seven days, the authorised person is able to direct the occupier of the premises, or the person making the noise, to stop making or contributing to the noise. [59]

An authorised person is:

• a police officer;
• a council officer;
• an officer of the Environment Protection Authority; or
• in relation to vessels in navigable waters, an officer or employee of the Waterways Authority. [60]

Unless given by an authorised officer appointed by the EPA, a noise abatement direction cannot be made against a public authority or a person acting on behalf of the State, and does not apply to a scheduled activity or any activity which is the subject of an environment protection licence. [61]

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). [62]

3.1.2.6 Noise Abatement Orders

The occupier of any premises may apply to the Local Court for a noise abatement order to stop offensive noise. The occupier starts the process by lodging a complaint with the chamber magistrate from a local court if he or she is affected by offensive noise. The person making the noise or the occupier of the premises causing the noise can then be summoned to appear in the Local Court.

The Local Court will decide whether a nuisance exists or, if it has stopped, whether it is likely to recur. If so, the Court may make an order directing the person making the noise, or the occupier of the offending premises, to stop the nuisance within a specified time or to prevent it from recurring. [63]

A noise abatement order has no effect against the State (or a person acting on its behalf), or a public authority, and does not apply to any scheduled activity or an activity for which an environment protection licence has been issued. [64]

Failure to comply with a noise abatement order is an offence. [65]

3.1.2.7 Restrictions on the Sale and Use of Noisy Items

Noise pollution regulations establish noise emission standards for certain items of equipment. It is an offence to sell equipment that emits noise in excess of the levels prescribed by the regulations for that particular item. [66]

Noise pollution regulations also establish restrictions on the retail sale of certain items of equipment, such as lawn mowers and chainsaws manufactured on or after 1 July 1988. [67]

It is an offence to use equipment that emits noise in excess of the levels[68], other than within certain times, or otherwise not in accordance with the regulations. [70]

The noise pollution regulations also include a range of specific offences in relation to motor vehicles, which control:

• the use of motor vehicles on [71] and off [72] roads and at residential premises [73];
• the modification and repair of motor vehicle engines or air intake or exhaust systems [74];
• the use of refrigeration units fitted to motor vehicles [75];
• the sale of new horns [76] and intruder alarms [77]; and
• the sale [78] of used and the use [79] of motor vehicles, the noise control equipment of which is not securely in place or is defective.

Similar offences exist for the use of boats and their sound systems. [80]

Complaints regarding noisy items should be directed to the ‘appropriate regulatory authority', which is generally your local council, [81] but will be the EPA if the noise comes from scheduled premises, is generated by a scheduled activity [82] or relates to motor vehicles.

3.1.3 Pollution Offences

The Protection of the Environment Operations Act establishes a number of criminal offences in relation to water, air and noise pollution.

Duty to notify

It is an offence if a polluter fails to notify the appropriate regulatory authority of pollution incidents (other than solely odour emissions [83]) where material harm to the environment is caused or threatened. [84]

A person carrying on an activity which causes pollution that poses a threat to the environment must notify the appropriate regulatory authority [85] of the incident and disclose all relevant information about the incident. [86]

Employees also have a duty to inform their employer of any pollution incident, and that employer (or an employer who otherwise becomes aware of a pollution incident) must notify the appropriate regulatory authority of the incident and all relevant information about it (s148(3A)) The occupier of premises on which a pollution incident occurs also has a duty to notify the appropriate regulatory authority of a pollution incident and disclose all relevant information about it. [88]

An employer and the occupier of any premises have a duty to make people engaged by them in relation to the site or activity aware that if a pollution incident occurs they should notify the employer or occupier of the incident and all relevant information about it. [89]

A person is not required to notify a pollution incident if the person is aware that the incident has already come to the notice of the person or authority required to be notified. [90]

The maximum penalty which may be imposed for failing to notify the appropriate person or regulatory authority of a pollution incident is $1, 000, 000 for a corporation and $250, 000 for an individual. Further penalties may apply for each day the offence continues.

3.1.3.1 Water Pollution Offences

It is an offence to pollute waters without a pollution licence. [91] The legal definition of ‘water pollution' is very broad. It includes the introduction of any matter – solid, liquid or gas – into waters which changes the physical, chemical or biological condition of the water. [92]

The definition of water pollution includes the placing of any matter [93] in a position where pollution enters or is likely to enter any waters. [94] The list of matter which must not be placed in or near any waters can be found at Schedule 3 of the Protection of the Environment Operations (General) Regulation 1998. It includes substances such as:

• animal matter
• plant matter
• inorganic matter such as ash, soil, earth, mud, stones, sand and clay
• any byproduct of an industrial, agricultural or commercial activity
• any refuse including scrap metal, glass, junk, paper, plastic, rubbish, vehicle or vehicle tyres
• any oil, grease or flammable liquids
• any waste liquid which is more than 2 degrees Celsius hotter or colder than the water into which it is discharged
• any matter that has a pH value of less than 6.5 or more than 8.5
• pesticides
• any poisonous substance
• any dangerous goods or hazardous substances
• arsenic, barium, boron, cadmium, chloride, chromium (hexavalent), copper, cyanide, fluoride, iron (dissolved), lead, manganese (dissolved), mercury, selenium, silver, uranyl ion or zinc
• any matter that contains any nitrogen, sulphur, phenolic or phosphorous compound.

It is only permissible to pollute water if a pollution licence authorises such pollution (and the person complies with the conditions of the licence) [95]or there is a relevant exemption under the Regulations. [96]

3.1.3.2 Air Pollution Offences

The legal definition of ‘air pollution' is the emission into the air of any impurity, including smoke, dust, cinders, solid particles, gases, mists, fumes, odours and radioactive substances. [97]

Unlike water pollution, there is no general prohibition on causing air pollution. [98] An air pollution incident will only be an offence if it arises as a result of:

• a person occupying premises at which a “scheduled activity” is carried out, or carrying out a scheduled activity, without a pollution licence, or if they breach the conditions of their pollution licence; [99] or an occupier of any premises [100]
• committing one of a number of specific air pollution offences listed in the POEO Act, [101]as follows:
• failing to maintain plant or equipment in a proper and efficient manner; [102]
• failing to operate plant or equipment in a proper and efficient manner; [103]
• carrying out an activity, or operating any plant, so as to emit impurities in excess of specified rates or concentrations (see discussion below); [104]
• failing to carry out maintenance work in a proper and efficient manner; [110]
• failing to deal with materials in a proper and efficient manner. [106]

Pollution regulations establish specific standards for certain pollutants and for certain activities (for example, particulate pollution caused by the operation of plant or equipment). It is an offence to carry out any activity which causes the emission of air pollution in excess of these standards. [107] In the absence of relevant air pollution standards, the occupier must carry on the activity in a way that minimises or prevents air pollution. [108]

It is an offence to burn a fire in the open or in an incinerator contrary to orders published by the Environment Protection Authority in newspapers or broadcast on television or radio. [109]

3.1.3.3 Noise Pollution Offences

There is no general prohibition on causing noise pollution. However, a number of specific offences exist in relation to activities that result in noise pollution.

A pollution licence is required to carry out certain ‘scheduled activities' (see Section 3.1.1 – Pollution Licences ). It is an offence to carry out a scheduled activity without a licence. [112] A pollution licence may contain conditions in relation to noise pollution. It is an offence to breach the conditions of a licence. [113]

If an occupier of premises fails to maintain equipment or machinery in an efficient condition, or fails to properly operate it, and such failure causes the operation of that equipment or machinery to emit a sound or vibration from the premises, the occupier is guilty of an offence. [114]

Noise pollution caused by non-scheduled activities may be subject to the following controls:

• noise control notices; [115]
• noise abatement directions; [116]
• noise abatement orders; [117] and
• restrictions on the sale and use of noisy items. [118]

These controls are discussed above in Section 3.1.2 – Pollution Notices.

3.1.3.4 Classification of Offences

The Protection of the Environment Operations Act establishes a three-tier hierarchy of pollution offences.

Tier 1 offences are the most serious offences and involve wilful or negligent activities which harm, or are likely to harm, the environment. [119] Examples include:

• wilfully or negligently disposing of waste in a manner that harms or is likely to harm the environment; [120]
• wilfully or negligently allowing a substance to leak, spill or escape in a manner that harms or is likely to harm the environment; [121]and
• wilfully or negligently emitting an ozone-depleting substance in a manner that harms or is likely to harm the environment. [122]

Tier 2 offences are serious offences which are not Tier 1 offences. [123] Examples include:

• causing water pollution; [124]
• emitting air impurities in excess of prescribed concentrations; [125]
• emitting offensive odours from premises licensed to be used for scheduled activities; [126]
• emitting noise pollution from premises because equipment was not properly maintained or operated; [127]
• permitting land to be used unlawfully as a waste facility; and [128]
• failure by a person, employer or employee carrying out an activity, or occupier of premises, to notify the appropriate regulatory authority when a pollution incident occurs which causes material harm to the environment. [129]

Tier 2 offences are ‘strict liability offences'. This means that to prove the offence, the prosecutor does not need to show that the defendant intended to commit the act or was negligent. The prosecutor only has to prove that the defendant's act or omission caused the pollution. Strict liability means that the commission of the prohibited act is all that must be proved. It is not also necessary to prove intent or negligence. [130]

A Tier 3 offence is the least serious of the three categories of offences. A Tier 3 offence is a Tier 2 offence for which a penalty notice can be issued (also called a ‘penalty notice offence'). This includes many of the offences listed above as Tier 2 offences, when the offence is deemed not sufficiently serious to be a Tier 2 offence. [131] Tier 3 offences are absolute liability offences. Absolute liability means that the prosecution can prove the offence without having to address whether the defendant committed the act wilfully or negligently. Guilt is established by proof of the objective elements of the offence. [132]

In addition to the Tier 2 offences stated above, examples of Tier 3 offences include: [133]

• failing to obtain a pollution licence to carry out certain activities; [134]
• failing to comply with the conditions of a pollution licence; [135]
• failing to comply with a clean-up notice [136] or prevention notice. [137]

An enforcement officer may serve a penalty notice on a person if it appears to the enforcement officer that the person has committed a penalty notice offence. [138]

The identity of the relevant enforcement officer depends on the offence, but for most offences it will be an officer or employee of the EPA. However local council officers, police officers and officers of other government bodies such as the Waterways Authority or the Sydney Harbour Foreshore Authority are enforcement officers for other penalty offences.

The relevant enforcement officer for each penalty notice offence is set out at Schedule 1 of the Protection of the Environment Operations (Penalty Notices) Regulation 2004. [139]

A person served with a penalty notice can simply pay the penalty and no further proceedings will be taken. [140]

3.1.4 Pollution Prosecutions

A prosecution for a pollution offence may be commenced by the appropriate regulatory authority or, in certain circumstances, members of the public. [141] In order to obtain a conviction, the prosecutor must establish each element of the offence to the criminal standard of proof – that is, ‘beyond reasonable doubt'.

3.1.4.1 Prosecutions by Regulatory Authorities

The Protection of the Environment Operations Act confers different powers and limitations on the various regulatory authorities.

The Environment Protection Authority can prosecute any offence under the Protection of the Environment Operations Act. [142] The circumstances in which the Environment Protection Authority is likely to prosecute are set out in the EPA Prosecution Guidelines. [143] The EPA has principal responsibility for prosecuting offences which relate to a scheduled activity.[144] A local council may also bring proceedings relating to a scheduled activity, but only with the leave (or permission) of the Court. [145]

A local council can initiate a prosecution for most pollution offences, except for 'excluded offences' which are:

• pollution offences which are associated with a scheduled activity;
• activities or work which are authorised by a pollution licence;
• activities carried out by the State or a public authority; and
• in the case of a noise pollution offence for vessels in, or premises adjacent to, navigable waters (the Waterways Authority prosecutes these offences). [146]

For more information about ‘scheduled activities', see Section 3.1.1 – Pollution Licences.

Water supply authorities (such as Sydney Water or the Sydney Catchment Authority) may prosecute water pollution offences, provided the offence is not an ‘excluded offence' (see paragraph above). [147]

Police officers may institute proceedings for:

• a noise pollution offence;
• a littering offence, or
• an offence against the regulations relating to the operation of a motor vehicle. [148]

3.1.4.2 Criminal Prosecutions by the Public

Any person may initiate criminal proceedings to prosecute an offence under the Protection of the Environment Operations Act with the leave (or approval) of the Land and Environment Court. Note that this is different to bringing a civil action – such as for an injunction, declaration or remediation order – to enforce the POEO Act, which any person may do. The Land and Environment Court can only grant leave for a member of the public to prosecute if it is satisfied that:

• the Environment Protection Authority:
  • has decided not to take enforcement action in relation to the offence; or
  • has not made a decision within 90 days of the person requesting consent to commence proceedings;
• the Environment Protection Authority has been notified of the proceedings;
• the proceedings are not an abuse of the court process; and
• the particulars of the offence disclose a prima facie [150] case that the offence was committed. [151]

Note: The information contained in this publication is for general reference only. If you are contemplating legal action, you should seek legal advice on the specific facts of your case as soon as possible.

3.1.4.3 Court Jurisdiction

Proceedings for Tier 1 offences (serious environmental offences) are dealt with in Class 5 of the Land and Environment Court or the Supreme Court.[152] Other offences may be dealt with in the Local Court. [153]

3.1.4.4 Limitation Periods

As a general rule, prosecutions for pollution offences must be commenced within twelve months of the offence. [154] However, the limitation period is three years for certain serious offences, including Tier 1 offences and offences relating to failure to obtain a pollution licence, certain waste offences and offences under the Environmentally Hazardous Chemicals Act 1985.[155]

3.1.4.5 Penalties and Orders

Maximum penalties for pollution offences vary depending on the type of offence, but may be as high as $5 million, for a company and $1, 000, 000 or seven years imprisonment for an individual found guilty of a Tier 1 offence. [156]

If the person that caused the pollution is an employee or agent of a company, or if a company is the occupier of polluting premises, the company and the executive officers and directors of the company may be held personally liable for the offence. [157]

In addition to financial penalties and imprisonment, the court may order any person convicted of a pollution offence:

• to prevent, control or lessen any harm the offence caused to the environment; [158]
• to make good any resulting environmental damage; [159]
• to prevent the offence from recurring; [160]
• to take action to publicise the offence; [161]
• to notify specified persons of the offence (for example, shareholders); [162] or
• to carry out an environmental restoration project in a public place or for the public benefit and provide a financial assurance to the EPA in relation to this; [163]
• pay a specified amount to the Environmental Trust or a specified environmental organisation; [164] and
• attend or establish a training or other course specified by the court.

The court may also order an offender to pay compensation for damage to property or pay any costs incurred by a public authority or individual to prevent or lessen the damage. [166]

If an environment protection licence holder is convicted of a major environmental offence [167] the Minister for the Environment may revoke or suspend their licence. [168]

3.1.4.6 Sentencing Considerations

In deciding what penalty to impose, the court is required to consider:

• the level of environmental harm;
• the practical measures taken to prevent or lessen the harm;
• the foreseeability of the harm;
• the level of control that the convicted person had over the cause of the offence; and
• whether the convicted person was following orders from an employer or supervisor. [169]

The court may take into account other matters that it considers relevant. [170]

3.1.4.7 Defences

The availability of defences depends upon the classification of the offence.

It is a defence to any Tier 1 offence if the defendant can prove:

• that the offence was due to causes over which the defendant had no control; and
• that the defendant took reasonable precautions and exercised ‘due diligence' to prevent the offence from occurring. [171]

In order to establish the defence, the defendant must demonstrate both elements of the defence on the balance of probabilities. To demonstrate the exercise of ‘due diligence', the defendant must establish that they took all feasible and prudent measures to prevent the offence. It must be shown that the defendant's mind was concentrated upon the likely risks - general precautions such as the implementation of a generic environmental management system are unlikely to be enough. [172]

If the defendant is a company, it is required to prove that it exercised due diligence by referring to the actions of the people who are the ‘directing mind and will' of the company, including senior management personnel, the managing director and the board of directors. [173]

In order to establish due diligence, the company may be required to provide evidence of the effectiveness of its environment management systems, including policies and procedures for managing, monitoring and mitigating the potential environmental impacts of its activities.

Tier 2 offences are strict liability offences, which do not require the prosecutor to establish any negligence or wilfulness on the part of the defendant. For these offences, it is a defence that the defendant made an ‘honest and reasonable mistake'. [175]

The defendant must show that it acted on an honest and reasonable mistaken belief in a state of facts, which, if they existed, would have made the defendant's act innocent. If this defence is raised, the onus shifts to the prosecution to negative the defence beyond reasonable doubt. [176]

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

If a corporation commits an offence, the directors and senior management are taken to have contravened the same provision. [178] In order to avoid personal liability for a pollution offence, company managers or directors may seek to establish a defence on the basis that they:

• were not in a position to influence the company's conduct in relation to the offence; [179] or
• used all due diligence to prevent the contravention by the corporation. [180]

It may be useful, when complaining about a pollution incident caused by a company, to try to contact senior management directly, as the prospect of personal liability will create a significant incentive for management to take urgent action to remedy or reduce the impact of the pollution.

3.1.5 Civil Enforcement

Any person may commence civil proceedings in the Land and Environment Court (for example, seeking an injunction, declaration or remediation order) to restrain a breach or threatened breach of the Protection of the Environment Operations Act. [181] Note that civil proceedings are different to a criminal prosecution, which involves a fine or term of imprisonment to punish the offender. The standard of proof in civil proceedings is less strict than for criminal proceedings, and therefore may be more effective if quick action is required to protect the environment. The case need only be proved on the balance of probabilities, rather than beyond a reasonable doubt.

Under the general 'harm to the environment' provisions of the POEO Act, any person may commence civil proceedings in the Land and Environment Court to restrain a breach or threatened breach of any Act if the breach is causing or is likely to cause harm to the environment. [182] For these proceedings, a copy of the application must be given to the EPA as soon as practicable, and the EPA is entitled to be a party to the proceedings. [183]

If the pollution interferes with your personal rights, such as by causing damage to your property, you can also commence a private civil action, such as a claim based on nuisance or negligence. It is very expensive to bring these sorts of actions and it may be hard to prove that the pollution caused specific loss or damage to you personally. If you lose, you may end up having to pay not only your own legal costs, but those of your opponent as well.

Note: The information contained in this publication is for general reference only. If you are contemplating legal action, you should seek legal advice on the specific facts of your case as soon as possible.

References

1. Allocation of the Administration of Acts (No 2) 2006.
2. The Environment Protection Authority is a statutory authority with charter, objectives and general responsibilities established under the Protection of the Environment Administration Act 1991.
3. Protection of the Environment Operations Act 1997, s. 6.
4. Protection of the Environment Operations Act 1997, s. 6(1) and (2)(c) and (d).
5. Protection of the Environment Operations Act 1997, s. 6(2).
6. Protection of the Environment Operations Act 1997, s. 6(3).
7. Protection of the Environment Operations (General) Regulation 1998, cl. 64.
8. Protection of the Environment Operations (General) Regulation 1998, cl. 64A. The Waterways Authority or the Minister administering the Ports Corporatisation and Waterways Management Act 1995 has power to issue noise control notices to premises or vessels in navigable waters: Protection of the Environment Operations Act 1997, s. 263, and Dictionary; and the Waterways Authority may issue noise abatement directions to vessels in navigable waters: Protection of the Environment Operations Act 1997, s. 275(b).
9. Protection of the Environment Operations Act 1997, s263.
10. Protection of the Environment Operations Act 1997, ss. 275 and 276.
11. Protection of the Environment Operations Act 1997, s. 43.
12. Protection of the Environment Operations Act 1997, Schedule 1, Part 1.
13. Protection of the Environment Operations Act 1997, ss. 47-49.
14. Protection of the Environment Operations Act 1997, ss. 47-49.
15. Protection of the Environment Operations Act 1997, s. 43(d): such a licence is not compulsory under the Protection of the Environment Operations Act 1997, but it will provide a defence to the offence of polluting waters under s.120.
16. Protection of the Environment Operations Act 1997, ss. 120, 122. For example discharges into sewers not within the area of operation of a sewage authority (cl 55), discharges into “navigable waters” of certified on-board vessel sewerage treatment systems (cl 55A), certain operations of an engine propelling a vessel (cl. 56), cold water pollution from dams (cl 56A) – clauses are from the Protection of the Environment (General) Regulation 1998.
17. Environment Planning and Assessment Act, s. 91.
18. Protection of the Environment Operations Act 1997, s.91A
19. Environment Planning and Assessment Act 1979, s. 112.
20. See the definition of “appropriate regulatory authority” in s. 6 of the Protection of the Environment Operations Act 1997.
21. Protection of the Environment Operations Act 1997, s. 45.
22. Protection of the Environment Operations Act 1997, s. 45(l)(i).
23. In which case, it will be integrated development under s. 91 of the Environment Planning and Assessment Act: see Chapter 2.
24. Protection of the Environment Operations Act 1997, s. 45(l)(ii).
25. Protection of the Environment Operations Act 1997, s. 61.
26. Protection of the Environment Operations (General) Regulation 1998, cl.46
27. Protection of the Environment Operations Act 1997, s. 287 and Land and Environment Court Act 1979, s.17(a).
28. Land and Environment Court Act 1979, s.20(2)(b) and Protection of the Environment Operations Act 1997, s. 45
29. Protection of the Environment Operations Act 1997, s. 252; and Land and Environment Court Act 1979, s.20(2).
30. Protection of the Environment Operations Act 1997, s. 63.
31. See Protection of the Environment Operations Act 1997, ss. 65-76.
32. Protection of the Environment Operations Act 1997, s. 64 provides that the maximum penalty for a failure to comply with a condition of a licence is, in the case of a corporation $1, 000, 000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or in the case of an individual the maximum penalty is $250, 000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues (s.64(1)). The holder of a licence is not guilty of an offence against this section if the holder establishes that: (a) the contravention of the condition was caused by another person, and (b) that other person was not associated with the holder at the time the condition was contravened, and (c) the holder took all reasonable steps to prevent the contravention of the condition. (per s.64(2))
33. Protection of the Environment Operations Act 1997, s. 77(1).
34. Protection of the Environment Operations Act 1997, s. 78(1).
35. Protection of the Environment Operations Act 1997, s. 78(2). Any failure to comply with the requirement to publicly notify of a licence review under this section cannot be the subject of legal challenge under the Protection of the Environment Operations Act 1997, but must be reported to the EPA Board and in the EPA's annual report: s. 78(3) and (5).
36. Protection of the Environment Operations Act 1997, s. 58.
37. Protection of the Environment Operations Act 1997, s. 58(6).
38. Protection of the Environment Operations Act 1997, s. 79(5). The EPA may take into account such things as other breaches of environmental laws, or technical incompentency, in deciding whether a person is a “fit and proper” person: Protection of the Environment Operations Act 1997, s. 83(2).
39. Protection of the Environment Operations Act 1997, s. 82. A “major pollution offence” means an offence punishable by a fine of $1, 000, 000 or more (in the case of a corporation) or $250, 000 or more (in the case of an individual): s. 82(2).
40. Protection of the Environment Operations Act 1997, ss. 89-103.
41. Protection of the Environment Operations Act 1997, s. 6(2). Clauses 64 to 67 of the Protection of the Environment Operations (General) Regulation 1998 declare various public authorities to be the appropriate regulatory authority for some functions, including pollution notices. For example, the Waterways Authority is the appropriate regulatory authority for non-scheduled activities involving non-pilotage vessels in navigable waters: cl. 64A.
42. Protection of the Environment Operations Act 1997, s. 90.
43. Protection of the Environment Operations Act 1997, ss. 264 and 276.
44. Protection of the Environment Operations Act 1997, s. 91(1).
45. Protection of the Environment Operations Act 1997, s. 91(2).
46. Protection of the Environment Operations Act 1997, s. 91(1). See Dictionary: ‘clean up action'.
47. Protection of the Environment Operations Act 1997, s. 91(5). The maximum penalty for failing to comply with a clean-up notice in the case of a corporation is $1, 000, 000 with a possible further penalty of $120,000 for each day the offence continues. In the case of an individual the maximum penalty is $250, 000 with a possible additional $60,000 for each day the offence continues.
48. Protection of the Environment Operations Act 1997, s. 91(4).
49. Protection of the Environment Operations Act 1997, s. 92(1).
50. Protection of the Environment Operations Act 1997, s. 104(2).
51. Protection of the Environment Operations Act 1997, ss. 95-96.
52. Protection of the Environment Operations Act 1997, s. 96.
53. Protection of the Environment Operations Act 1997, s. 97. The maximum penalty for failing to comply with a prevention notice in the case of a corporation is $1, 000, 000 with a possible further penalty of $120,000 for each day the offence continues. In the case of an individual the maximum penalty is $250, 000 with a possible additional $60,000 for each day the offence continues.
54. Protection of the Environment Operations Act 1997, s. 101.
55. Protection of the Environment Operations Act 1997, s. 102. The maximum penalty for failing to comply with a prohibition notice in the case of a corporation is $1, 000, 000 with a possible further penalty of $120,000 for each day the offence continues. In the case of an individual the maximum penalty is $250, 000 with a possible additional $60,000 for each day the offence continues.
56. Protection of the Environment Operations Act 1997, s. 264.
57. Protection of the Environment Operations Act 1997, s. 265. Fines can be up to $60,000 for a corporation and $30,000 for an individual with continuing fines for each day the offence continues.
58. Protection of the Environment Operations Act 1997, See Dictionary ‘offensive noise'.
59. Protection of the Environment Operations Act 1997, s. 276.
60. Protection of the Environment Operations Act 1997, s. 275, s.187.
61. Protection of the Environment Operations Act 1997, s. 278.
62. Protection of the Environment Operations Act 1997, s. 277. The maximum penalty for failure to comply with a noise abatement direction is 30 penalty units. At the time of publication, a penalty unit equals $110.
63. Protection of the Environment Operations Act 1997, s. 268.
64. Protection of the Environment Operations Act 1997, s. 270.
65. Protection of the Environment Operations Act 1997, s. 269.
66. Protection of the Environment Operations Act 1997, ss. 136-137. The penalty for a corporation is a fine of up to $60,000 and up to $30,000 for an individual with continuing fines for each day the offence continues
67. Including grass cutters (cll.37-43), chainsaws (cl.44), air conditioners manufactured on or after 1 March 1986 (cl.45), air compressors (cl.46) and pavement breakers (cl.47) manufactured on or after 1 October 1985, mobile garbage compactors registered on or after 1 February 1989 (cl.48), intruder alarms sold on or after 1 September 1997(cl.49), motor vehicles (cll.5, 6), vehicle horns (cll.7, 8) and alarms (cll.9-12) [clauses cited are from the Protection of the Environment Operations (Noise Control) Regulation 2000 ].
68. Motor vehicles (cll. 13 – 15, 20), motor vehicle horns (cl. 21) Clauses are from Protection of the Environment Operations ( Noise Control) Regulation 2000.
69. Sound systems on vessels (cl. 32); power tools and equipment (cl. 50); musical instruments and sound equipment (cl. 51); residential airconditioners (cl. 52). Clauses are from Protection of the Environment Operations ( Noise Control) Regulation 2000.
70. “Panic switch” motor vehicle alarms (cl. 23) and other motor vehicle alarms (cl. 24, 25); vessel sirens (cl. 29); engine powered vessels (cl. 30); building intruder alarms (cl. 53).. The maximum penalty for exceeding the prescribed noise level varies depending on the source: however, by way of example, the maximum penalty for excessively loud vehicle sound systems (cl.17), horns (cl.21) or intruder alarms (cl.24) is 100 penalty units in the case of a corporation and 50 penalty units in the case of an individual (a penalty unit at the time of writing is $110).
71. Protection of the Environment Operations ( Noise Control) Regulation 2000 cl. 13
72. Protection of the Environment Operations ( Noise Control) Regulation 2000 cl. 14
73. Protection of the Environment Operations ( Noise Control) Regulation 2000 cl. 15
74. Protection of the Environment Operations ( Noise Control) Regulation 2000 cl. 20
75. Protection of the Environment Operations ( Noise Control) Regulation 2000 cl. 16
76. Protection of the Environment Operations ( Noise Control) Regulation 2000 cl. 8
77. Protection of the Environment Operations ( Noise Control) Regulation 2000 cl. 9
78. Protection of the Environment Operations ( Noise Control) Regulation 2000 cl. 6
79. Protection of the Environment Operations ( Noise Control) Regulation 2000 cl. 18
80. Protection of the Environment Operations ( Noise Control) Regulation 2000, Part 2
81. Protection of the Environment Operations Act 1997, s. 6(2).
82. Protection of the Environment Operations Act 1997, s. 6(1) and (2)(c) and (d), refer to Schedule 1 for the list of scheduled activities and premises.
83. Protection of the Environment Operations Act 1997 s. 148(7).
84. Protection of the Environment Operations Act 1997, s. 148. Material harm includes harm that is not trivial and results in actual or potential loss or property damage exceeding $10,000.
85. See Section 3.1 for more information about the ‘appropriate regulatory authority'.
86. Protection of the Environment Operations Act 1997, s. 148(2)
87. Protection of the Environment Operations Act 1997, s. 148(3)
88. Protection of the Environment Operations Act 1997, s. 148(4)
89. Protection of the Environment Operations Act 1997, s. 148(5)
90. Protection of the Environment Operations Act 1997, s. 151
91. Protection of the Environment Operations Act 1997, s. 120.
92. Protection of the Environment Operations Act 1997, See Dictionary ‘water pollution'.
93. Protection of the Environment Operations (General) Regulation 1998, cl.52 and Schedule 3, which define the meaning of ‘prescribed matter' in the definition of water pollution.
94. The definition of ‘waters' includes: a ny river, stream, lake, lagoon, wetlands, surface water, natural or artificial watercourse, dam or tidal waters (including the sea); water stored in artificial works, water in water mains, water pipes or water channels or any underground or artesian water: see Protection of the Environment Operations Act 1997, Dictionary, “waters”.
95. Protection of the Environment Operations Act 1997, s. 122.
96. Protection of the Environment Operations Act 1997, ss. 120, 122. For example discharges into sewers not within the area of operation of a sewage authority (cl 55), discharges into “navigable waters” of certified on-board vessel sewerage treatment systems (cl 55A), certain operations of an engine propelling a vessel (cl. 56), cold water pollution from dams (cl 56A) – clauses are from the Protection of the Environment (General) Regulation 1998.
97. Protection of the Environment Operations Act 1997, Dictionary See ‘air pollution' and ‘air impurity'.
98. Although the general Tier 1 offence of wilfully 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: Protection of the Environment Operations Act 1997, s. 116.
99. Protection of the Environment Operations Act 1997, ss. 48, 49, 64.
100. Excluding residential premises: Protection of the Environment Operations Act 1997, s. 131.
101. Protection of the Environment Operations Act 1997, Part 5.4, ss.124-135.
102. Protection of the Environment Operations Act 1997, s. 124(a).
103. Protection of the Environment Operations Act 1997, s. 124(b).
104. Protection of the Environment Operations Act 1997, s. 128.
105. Protection of the Environment Operations Act 1997, s. 125.
106. Protection of the Environment Operations Act 1997, s.126.
107. Protection of the Environment Operations Act 1997, s128.
108. Protection of the Environment Operations Act 1997, s.128.
109. Protection of the Environment Operations Act 1997, s. 133.
110. Protection of the Environment Operations Act 1997, s.129.
111. Environment Protection Authority v Illawarra Coke Co Pty Ltd (2002) 118 LGERA 451.
112. Protection of the Environment Operations Act 1997, ss. 48 & 49.
113. Protection of the Environment Operations Act 1997, s. 64.
114. Protection of the Environment Operations Act 1997, s. 139. The maximum penalty for a noise pollution offence is in the case of a corporation—a penalty not exceeding $1, 000, 000 and, in the case of a continuing offence, to a further penalty not exceeding $120, 000 for each day the offence continues, or in the case of an individual—a penalty not exceeding $30,000 and, in the case of a continuing offence, to a further penalty not exceeding $60, 000 for each day the offence continues ( Protection of the Environment Operations Act 1997 s.141)..
115. Protection of the Environment Operations Act 1997, s. 264.
116. Protection of the Environment Operations Act 1997, s. 276.
117. Protection of the Environment Operations Act 1997, s. 268.
118. Protection of the Environment Operations Act 1997, s. 136-137.
119. Protection of the Environment Operations Act 1997, s. 114(1). The maximum penalties for Tier 1 offences are $1,000,000 for corporations and $250,000 or seven years imprisonment for an individual.
120. Protection of the Environment Operations Act 1997, s. 115(1).
121. Protection of the Environment Operations Act 1997, s. 116(1). Other people that may be liable for a substance leaking, spilling or escaping are the person in possession of the substance at the time of the incident (s. 116(2)(a)); the owner of any container from which the substance leaked, spilled or escaped (s. 116(2)(b)); and the owner of the land where the substance or container was located at the time of the incident s. 116(2)(c) and (d)).
122. Protection of the Environment Operations Act 1997, s. 117(1).
123. Protection of the Environment Operations Act 1997, s. 114(2).
124. Protection of the Environment Operations Act 1997, Part 5.3, ss. 120-123.
125. Protection of the Environment Operations Act 1997, Part 5.4, ss. 124-135.
126. Protection of the Environment Operations Act 1997, Part 5.4, s. 129.
127. Protection of the Environment Operations Act 1997, Part 5.5, ss. 136 –141.
128. Protection of the Environment Operations Act 1997, Part 5.6, ss. 142-144.
129. Protection of the Environment Operations Act 1997, Part 5.7, ss. 147-153.
130. If strictly liable of a civil offence, a defendant is liable irrespective of an absence of negligence or intention on his or her part and even if he or she took reasonable care to prevent the damage. Strict liability still allows the defence of honest and reasonable mistake of fact. ( He Kaw Teh's case (1992) 26 NSWLR 352 at 355 (at 529-530, 567-568, 594-595) as cited in Environment Protection Authority v N (1992) 26 NSWLR 352; 76 LGRA 114 ).
131. Protection of the Environment Operations Act 1997, s. 222. Tier 3 offences are listed in specified in Column 1 of Schedule 1 of the Protection of the Environment Operations (Penalty Notices) Regulation 2004. Penalties for Tier 3 offences vary and are prescribed by those regulations. The maximum fine is $5, 000 for corporations. The maximum fine for individuals is also $1,500 which is for Tier 3 waste offences (s143, 144, 144AA Protection of the Environment Operations Act 1997 ), or certain offences under the Environmentally Hazardous Chemicals Act 1985 (the offence of contravening a chemical control order (s26); or breaching a licence to which a chemical control order applies (s32)). Refer to Schedule 1 of the Protection of the Environment Operations (Penalty Notices) Regulation 2004 for the specific amount for each offence.
132. If strictly liable of a civil offence, a defendant is liable irrespective of an absence of negligence or intention on his or her part and even if he or she took reasonable care to prevent the damage. Strict liability allows the defence of honest and reasonable mistake of fact. ( He Kaw Teh's case (1992) 26 NSWLR 352 at 355 (at 529-530, 567-568, 594-595) as cited in Environment Protection Authority v N (1992) 26 NSWLR 352; 76 LGRA 114 ).
133. Protection of the Environment Operations (Penalty Notices) Regulation 2004, clause 4 and Schedule 1.
134. Protection of the Environment Operations Act 1997, ss. 47, 48, 49.
135. Protection of the Environment Operations Act 1997, ss. 64, 66(2), 66(4), 86, 88.
136. Protection of the Environment Operations Act 1997, ss. 91, 94.
137. Protection of the Environment Operations Act 1997, ss. 97, 100.
138. Protection of the Environment Operations Act 1997, s. 224
139. Protection of the Environment Operations (Penalty Notices) Regulation 2004, cl.5 and Schedule 1
140. Protection of the Environment Operations Act 1997, s. 225
141. Protection of the Environment Operations Act 1997, ss. 217-219.
142. Protection of the Environment Operations Act 1997, s. 217.
143. These guidelines are available online at: www.environment.nsw.gov.au.
144. Protection of the Environment Operations Act 1997, ss. 217, and 218(1) and (6)(a).
145. In Wyong Shire Council v Thomas Hughes Homes Pty Ltd (2000) 111 LGERA 371, the Court dismissed a prosecution brought by Wyong Shire Council for the offence of disposing of waste in a manner likely to cause harm to the environment. The site concerned was a ‘waste facility' which fell within the definition of a scheduled activity. The Court found that the local council was not the “appropriate regulatory authority” under ss. 217 and 218 of the Protection of the Environment Operations Act 1997, and did not have the power to initiate a prosecution where the offence concerned a schedule activity. The Protection of the Environment Operations Act 1997 has since been amended (see s. 219(1A) and (1B)) which allows a local authority to institute criminal proceedings with the leave (or permission) of the Court. Leave may only be granted where (s. 219(2):
     • the EPA has decided not to take any action to prevent or control the breach, or has failed to make a decision within 90 days;
     • the EPA has been notified of the proceedings; and
     • there is a prima facie case that the offence has been committed.
146. Protection of the Environment Operations Act 1997, s. 218(1) and (6).
147. Protection of the Environment Operations Act 1997, s. 218(2).
148. Protection of the Environment Operations Act 1997, s. 218(4).
149. Protection of the Environment Operations Act 1997, s219.
150. A prima facie case is one that has a real possibility of ultimate success.
151. Protection of the Environment Operations Act 1997, s. 219.
152. Protection of the Environment Operations Act 1997, s. 214.
153. Proceedings for Tier 2 and Tier 3 offences may be brought in a Local Court or the Land and Environment Court. See Protection of the Environment Operations Act 1997, s215.
154. Protection of the Environment Operations Act 1997, s216(1)(b).
155. Protection of the Environment Operations Act 1997, s. 216.
156. Protection of the Environment Operations Act 1997, s. 119(a).
157. Protection of the Environment Operations Act 1997, s. 169.
158. Protection of the Environment Operations Act 1997, s. 245(a).
159. Protection of the Environment Operations Act 1997, s. 245(b).
160. Protection of the Environment Operations Act 1997, s. 245(c).
161. Protection of the Environment Operations Act 1997, s. 250.
162. Protection of the Environment Operations Act 1997, s. 250.
163. Protection of the Environment Operations Act 1997, s. 250.
164. Protection of the Environment Operations Act 1997, s. 250
165. Protection of the Environment Operations Act 1997, s. 250
166. Protection of the Environment Operations Act 1997, ss. 246, 247.
167. A major pollution offence means an offence the commission of which has caused or is likely to cause harm to the environment, being an offence punishable by a fine of $1, 000, 000 or more (in the case of a corporation) or $250, 000 or more (in the case of an individual), refer to Protection of the Environment Operations Act 1997, s.82(2).
168. Protection of the Environment Operations Act 1997, s. 82.
169. Protection of the Environment Operations Act 1997, s. 241(1).
170. Protection of the Environment Operations Act 1997, s. 241(2).
171. Protection of the Environment Operations Act 1997, s. 118.
172. State Pollution Control Commission v Kelly (1991) 5 ACSR 607
173. Protection of the Environment Operations Act 1997, s. 169.
174. If strictly liable of a civil offence, a defendant is liable irrespective of an absence of negligence or intention on his or her part and even if he or she took reasonable care to prevent the damage. Strict liability allows the defence of honest and reasonable mistake of fact. ( He Kaw Teh's case (1992) 26 NSWLR 352 at 355 (at 529-530, 567-568, 594-595) as cited in Environment Protection Authority v N (1992) 26 NSWLR 352; 76 LGRA 114 ).
175. This is a common law defence, which means you will not find this defence stated in legislation. Rather it has been formulated by the courts in cases over time. This defence of ‘honest and reasonable mistake of fact' is only available for strict liability offences because those offences do not require proof of guilty knowledge or intention: He Kaw Teh v R (1985) 157 CLR 523
176. He Kaw Teh v R (1985) 157 CLR 523 and Australian Iron and Steel Pty Ltd v EPA (1992) 29 NSWLR 497
177. Absolute liability means the defendant can be held legally responsible for a breach of law, without any need to inquire into whether the defendant acted wilfully or negligently, and for which no defence is available except ‘act of God'. Refer to He Kaw Teh v R (1985) 157 CLR 523; 60 ALR 449; 59 ALJR 620; 15 A Crim R 203 ; R v Wampfler (1987) 11 NSWLR 541; 34 A Crim R 218.
178. Protection of the Environment Operations Act 1997, s. 169(1)(a).
179. Protection of the Environment Operations Act 1997, s. 169(1)(b).
180. Protection of the Environment Operations Act 1997, s. 169(1)(c).
181. Protection of the Environment Operations Act 1997, s. 252.
182. Protection of the Environment Operations Act 1997, s. 253.
183. Protection of the Environment Operations Act 1997, s. 253

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