Protection of the Environment Operations Act 1997 No 156

In this Chapter—

environment protection goal means a goal—

(a)  that relates to desired environmental outcomes, and

(b)  that guides the formulation of strategies for the management of human activities that affect the environment.

environment protection guideline means a guideline that gives guidance on possible means for achieving desired environmental outcomes.

environment protection protocol means a protocol that relates to the process to be followed in measuring environmental characteristics to determine—

(a)  whether a particular standard or goal is being met or achieved, or

(b)  the extent of the difference between the measured characteristic of the environment and a particular standard or a particular goal.

environment protection standard means a standard that consists of identifiable or quantifiable characteristics of the environment against which environmental quality can be assessed.

impact statement means an impact statement prepared by the EPA relating to a draft policy.

policy means a protection of the environment policy.

Note—

The Dictionary defines a protection of the environment policy as a protection of the environment policy made by the Governor under this Chapter and in force. The abbreviation PEPs is used in headings to refer to those policies.

Protection of the environment policies may be made for the purpose of declaring policies to be observed with respect to protecting the environment in New South Wales and, in particular, for the purpose of—

(a)  furthering the objectives of the EPA as set out in section 6 of the Protection of the Environment Administration Act 1991,

(b)  managing the cumulative impact on that environment of existing and future human activities.

(1)  A policy must specify one or more of the following—

(a)  an environment protection goal,

(b)  an environment protection standard,

(c)  an environment protection guideline,

(d)  an environment protection protocol.

(2)  A policy containing an environment protection goal may specify a program by which that goal is to be achieved, and performance indicators by which the achievement of that goal is to be measured.

(3)  A policy may be made for the purpose of implementing in New South Wales a national environment protection measure.

Note—

National environment protection measure is defined in the Dictionary.

(4)  A policy may be made in respect of the following—

(a)  the whole or any part of the State,

(b)  the environment generally or any part of it,

(c)  any activity that may impact, or has impacted, on the environment,

(d)  any form of pollution,

(e)  any aspect of waste,

(f)  any kind of technology or process,

(g)  any kind of chemical or other substance that may impact, or has impacted, on the environment,

(h)  any matter in respect of which national environment protection measures may be made.

(1)  The EPA may from time to time prepare draft policies in accordance with this Chapter.

(2)  The Minister may direct the EPA to prepare a draft policy about a particular matter in accordance with this Chapter. The EPA must comply with the direction.

(1)  In preparing a draft policy, the EPA must take into consideration—

(a)  the environmental, economic and social impact of the policy, and

(b)  the simplicity, efficiency and effectiveness of the administration of the policy, and

(c)  any environmental planning instruments that the EPA considers relevant (including any such draft instruments that are publicly available and are still current), and

(d)  any national environment protection measures that the EPA considers relevant (including any such draft measures that are publicly available and are still current), and

(e)  the principles of environmental policy set out in the Intergovernmental Agreement on the Environment, as in force for the time being, and

(f)  any regional environmental differences within New South Wales.

(2)  The EPA may take other matters into consideration.

This Part applies to the preparation of a draft policy, except where Part 2.4 applies.

(1)  The EPA—

(a)  may prepare a draft of the policy, and

(b)  if it does so, must prepare an impact statement relating to the draft policy.

(2)  The impact statement is to include all of the following—

(a)  the desired environmental outcomes,

(b)  the reasons for the policy and the environmental impact of not making the policy,

(c)  a statement of the alternative methods of achieving the desired environmental outcomes and the reasons why those alternatives have not been adopted,

(d)  an identification and assessment of the economic and social impact on the community (including industry) of making the policy,

(e)  a statement of the manner in which any regional environmental differences in New South Wales have been addressed in the development of the policy,

(f)  the intended date for the making of the policy,

(g)  the timetable (if any) for the implementation of the policy,

(h)  the transitional arrangements (if any) in relation to the policy.

(1)  Before making a policy, the EPA must publish a notice about the proposal to make the policy.

(2)  The notice must be published—

(a)  on the EPA’s website, and

(b)  if the EPA considers it necessary to publish the notice in other ways to bring the notice to the attention of members of the public generally or in a particular part of the State—in other ways the EPA is satisfied are likely to bring the notice to the attention of members of the public generally or in that part of the State.

(3)  The notice must—

(a)  state the objects of the proposed policy, and

(b)  advise where a copy of the proposed policy and impact statement may be obtained, and

(c)  invite submissions to the EPA on the proposed policy and impact statement within a period, not less than 3 months after the day on which the notice is published on the EPA’s website, specified in the notice.

s 17: Am 2018 No 25, Sch 2.27 [2]. Subst 2024 No 20, Sch 9[2].

During the preparation of a draft policy, the EPA is to consult with such public authorities, organisations or persons as the Minister directs and may consult with such others as the EPA thinks appropriate.

(1)  In proceeding with a draft policy, the EPA is to take into consideration the following, in addition to the matters referred to in Part 2.2—

(a)  the impact statement that relates to the policy,

(b)  any submissions it receives that relate to the policy or to the impact statement.

(2)  Accordingly, the EPA may make appropriate alterations to the draft policy.

(1)  Having completed all the steps required by this Part in relation to a draft policy, the EPA—

(a)  in the case of a draft policy that the Minister has, under Part 2.2, directed the EPA to prepare—must submit a copy of the draft policy to the Minister with a recommendation as to whether or not it be made, or

(b)  in the case of a draft policy that is not the subject of such a direction—may submit a copy of the draft policy to the Minister with a recommendation that it be made.

(2)  The copy of a draft policy submitted to the Minister under this section is to be accompanied by a report by the EPA about all relevant submissions made in accordance with this Part and any consultation undertaken by the EPA in connection with the draft policy.

This Part applies to the preparation of a draft policy where the Minister so directs in accordance with this Part.

(1) Direction regarding implementation of national measure A direction can be given if the Minister is satisfied that the policy will, if made, implement a national environment protection measure.

(2) Direction regarding minor amendments A direction can be given if the Minister is satisfied that the policy will, if made, amend or remake another policy in order to correct an obvious error in the other policy or to clarify the intention of the other policy.

(3) Direction regarding interim policies A direction can be given if the Minister is satisfied that there are special reasons why the policy should be made without delay. The direction must set out those special reasons.

Note—

Part 2.6 provides that a policy the subject of such a direction may only be made for a period of 12 months or less and must include the special reasons set out in the direction. Under that Part, a further interim policy may not be made within 12 months after the expiry or repeal of an interim policy if it is the same in substance as the expired or repealed policy.

(4) Consequential, machinery or minor matters A direction given under this section extends to matters dealt with in the policy that are of a consequential, machinery or minor nature (including for example the name and commencement of the policy, and transitional arrangements).

(5) Revocation of direction The Minister may revoke a direction given under this section.

A draft policy that is the subject of a direction under this Part can be prepared without the need to comply with Part 2.3.

(1)  Having finalised a draft policy that is the subject of a direction under this Part, the EPA must submit a copy of the draft policy to the Minister with a recommendation as to whether or not it be made.

(2)  The copy of the draft policy is to be accompanied by a report by the EPA about any consultation undertaken by the EPA in connection with the draft policy and any submissions made to the EPA about the draft policy.

After a draft policy has been submitted to the Minister under this Chapter, the Minister may recommend to the Governor the making of a policy—

(a)  in accordance with the draft policy as submitted, or

(b)  in accordance with the draft policy and such alterations as the Minister thinks fit.

The Governor may make a policy in accordance with a recommendation under this Part.

(1)  A policy that is based on a draft policy that is the subject of a direction under section 22 (3) is an interim policy.

(2)  An interim policy must include a statement that it is the result of such a direction and must include the special reasons set out in the direction for which the direction was given.

(3)  An interim policy expires at the end of the period of 12 months after it is published in the Gazette, or a shorter period specified in the policy, unless it is sooner repealed.

(4)  An interim policy, being the same in substance as an interim policy that has expired or been repealed, may not be made within 12 months after the expiry or repeal of the earlier policy.

(5)  If an interim policy amends or repeals another policy, the expiry or repeal of the interim policy has the effect of restoring the other policy, as it was immediately before it was amended or repealed, as if the interim policy had not been made. The restoration of the other policy takes effect on the day that the interim policy expires or is repealed.

Any relevant policies must be taken into consideration—

(a)  by the EPA or other regulatory authority when making a decision under Chapter 3 on whether to issue a licence or when making a decision under that Chapter about a licence, and

(b)  by the EPA or other regulatory authority when making a decision under Chapter 4 on whether to issue an environment protection notice or when making a decision under that Chapter about such a notice, and

(c)  by the EPA when making a decision under Part 9.1 on whether to grant an exemption or when making a decision under that Part about an exemption, and

(d)  by the EPA when exercising any other licensing or regulatory environment protection function under the environment protection legislation.

Any relevant policies must be taken into consideration—

(a)  by a local council when preparing a local environmental plan or development control plan under the Environmental Planning and Assessment Act 1979, and

(b)  by the Secretary of the Department in which the Environmental Planning and Assessment Act 1979 is administered when preparing a regional environmental plan under that Act, and

(c)  by the Minister administering that Act when making a local environmental plan or regional environmental plan under that Act, when recommending the making of a State environmental planning policy under that Act or when giving directions under section 9.1 of that Act, and

(d)  by a consent authority when determining a development application under that Act, and

(e)  by a determining authority when consideration is being given under Part 5 of that Act to the likely impact of an activity on the environment, and

(f)  by the Minister administering that Act when approving under Division 4 of Part 5 of that Act the carrying out of an activity.

s 29: Am 2022 No 3, Sch 5[1] [2]; 2024 No 20, Sch 9[3].

(1)  A policy must be taken into consideration by a public authority when exercising statutory or other functions, if the public authority is required to do so by that or another policy.

(2)  Such a requirement can be made as regards—

(a)  a specified public authority, or a specified class of public authorities, or public authorities generally, and

(b)  a specified function, or a specified class of functions, or functions generally.

(3)  This section does not limit the other provisions of this Part.

(1)  This Part does not operate to exclude a statutory discretion of a public authority, but the public authority must take the policy into consideration.

(2)  This Part does not operate to authorise any action by a public authority that is inconsistent with any statutory or other legal obligation of the public authority.

In this Part, public authority includes a Minister (including the Minister administering this Act or any portion of it), and also includes the EPA.

(1)  A policy may be amended or repealed by another policy prepared and made in accordance with the relevant procedures set out in this Chapter.

(2)  Section 30 of the Interpretation Act 1987 applies to a policy in the same way as it applies to a statutory rule.

(1)  A policy—

(a)  is to be published in the Gazette, and

(b)  takes effect on the day on which it is so published or, if a later day is specified in the policy for that purpose, on the later day so specified.

(2)  Neither the whole nor any part of a policy is invalid merely because (without statutory authority) the policy is published in the Gazette after the day on which one or more of its provisions is or are expressed to take effect. In that case, that or those provisions take effect from the day the policy is published in the Gazette, instead of from the earlier day.

A policy may do any one or more of the following—

(a)  apply generally or be limited in its application by reference to specified exceptions or factors,

(b)  apply differently according to different factors of a specified kind,

(c)  authorise any matter or thing to be determined according to the discretion of the EPA or any other person,

(d)  refer to or incorporate, with or without modification, a standard or other document prepared or published by a body specified in the policy, as in force at a particular time or from time to time.

A policy may not create an offence for a contravention of the policy.

(1)  Judicial notice is to be taken of a policy and of the date of its publication in the Gazette.

(2)  It is to be presumed, in the absence of evidence to the contrary, that all conditions precedent and preliminary steps necessary to the making of a policy under this Act have been complied with and performed.

(3)  The validity of a policy may not be questioned in any legal proceedings except those commenced in the Land and Environment Court by any person within 3 months after the date of its publication in the Gazette.

If—

(a)  there has been a failure to comply with a particular procedural requirement of this Act in preparing or making a policy, but

(b)  despite that failure there has been substantial compliance with the procedural requirements of this Act for preparing and making the policy,

the failure does not invalidate the policy.

(1)  A copy of every policy is to be available for public inspection, without charge, at the principal office of the EPA during ordinary office hours.

(2)  A copy of every policy is to be available for purchase from the EPA.

(3)  Failure to comply with any provision of this section does not affect the validity or operation of a policy.

(1)  Subject to any directions of the Minister, the EPA may decide at any time not to proceed with a draft policy.

(2)  The Minister may decline to recommend the making of a policy submitted to the Minister under this Chapter.

A policy is not a statutory rule for the purposes of the Subordinate Legislation Act 1989.

Environment protection licences may be issued and otherwise dealt with in accordance with this Chapter.

Environment protection licences may be issued for the following purposes—

(a)  to authorise the carrying out of scheduled development work at any premises, as required under section 47,

(b)  to authorise the carrying out of scheduled activities at any premises, as required under section 48,

(c)  to authorise the carrying out of scheduled activities not related to premises, as required under section 49,

(d)  to control the carrying out of non-scheduled activities for the purpose of regulating water pollution resulting from any such activity, as referred to in section 122.

Note—

Scheduled activities for which a licence is required are set out in Schedule 1. Scheduled development work for which a licence is required is defined in section 47 (being generally work on premises, at which scheduled activities are not carried on, that is designed to enable scheduled activities to be carried on at the premises). This Act permits (but does not require) a licence to be issued for a non-scheduled activity—compliance with the conditions of the licence provides a defence to the offence of polluting waters under section 120.

(1)  Licences may be issued or varied so as to cover either or both scheduled development work or scheduled activities.

(2)  Licences with respect to scheduled development work or scheduled activities may regulate all forms of pollution (including water pollution) resulting from that work or those activities.

(3)  Licences with respect to non-scheduled activities may also regulate any form of pollution in addition to water pollution resulting from those activities.

(4)  Licences authorising or controlling an activity carried on at any premises may also regulate pollution resulting from any other activity carried on at the premises to which the licence applies.

In exercising its functions under this Chapter, the appropriate regulatory authority is required to take into consideration such of the following matters as are of relevance—

(a)  any protection of the environment policies,

(b)  the objectives of the EPA as referred to in section 6 of the Protection of the Environment Administration Act 1991,

(c)  the pollution caused or likely to be caused by the carrying out of the activity or work concerned and the likely impact of that pollution on the environment,

(d)  the practical measures that could be taken—

(i)  to prevent, control, abate or mitigate that pollution, and

(ii)  to protect the environment from harm as a result of that pollution,

(e)  any relevant green offset scheme, green offset works or tradeable emission scheme or other scheme involving economic measures, as referred to in Part 9.3,

(f)  whether the person concerned is a fit and proper person,

Note—

See section 83 for provisions relating to the determination of whether a person is a fit and proper person for the purposes of this section.

(f1)  in relation to an activity or work that causes, is likely to cause or has caused water pollution—

(i)  the environmental values of water affected by the activity or work, and

(ii)  the practical measures that could be taken to restore or maintain those environmental values,

(g)  in connection with a licence application relating to the control of the carrying out of non-scheduled activities for the purpose of regulating water pollution—whether the applicant is the appropriate person to hold the licence having regard to the role of the applicant in connection with the carrying out of those activities,

(h)  in connection with a licence application—any documents accompanying the application,

(i)  in connection with a licence application—any relevant environmental impact statement, or other statement of environmental effects, prepared or obtained by the applicant under the Environmental Planning and Assessment Act 1979,

(j)  in connection with a licence application—any relevant species impact statement prepared or obtained by the applicant under the Biodiversity Conservation Act 2016 or Part 7A of the Fisheries Management Act 1994,

(k)  in connection with a licence application, any waste strategy in force under the Waste Avoidance and Resource Recovery Act 2001,

(l)  in connection with a licence application—

(i)  any public submission in relation to the licence application received by the appropriate regulatory authority under this Act, and

(ii)  any public submission that has been made under the Environmental Planning and Assessment Act 1979, in connection with the activity to which the licence application relates, and that has been received by the appropriate regulatory authority,

(m)  if the appropriate regulatory authority is not the EPA—any guidelines issued by the EPA to the authority relating to the exercise of functions under this Chapter.

s 45: Am 1998 No 120, Sch 1.35 [1]; 2001 No 58, Sch 2 [3]; 2005 No 96, Sch 1 [3]–[5]; 2018 No 25, Sch 1.19 [1] [2]; 2024 No 20, Sch 9[4].

This Chapter has effect in addition to and does not derogate from the requirements of any other Act, except as expressly provided in this or any other Act.

(1) Offence A person who is the occupier of any premises at which scheduled development work is carried out is guilty of an offence unless the person is, at the time that work is carried out, the holder of a licence that authorises that work to be carried out at those premises.

Maximum penalty—

(a)  in the case of a corporation—$2,000,000 and, in the case of a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b)  in the case of an individual—$500,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues.

Note—

An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.

(2) Provisions relating to offences In proceedings for an offence arising under this section—

(a)  it is not necessary that it be established that the offence was committed on a particular day or on particular days, provided it is established that the offence was committed during a particular period, and

(b)  it is immaterial whether or not the work referred to in subsection (1) was or is completed.

(3) Meaning of scheduled development work In this Act—

scheduled development work means work at any premises at which scheduled activities are not carried on that is designed to enable scheduled activities to be carried on at the premises. However, scheduled development work—

(a)  also includes anything that is specified by the regulations as scheduled development work for the purposes of this Act, but

(b)  does not (despite the above) include anything that is specified by the regulations as not being scheduled development work for the purposes of this Act.

s 47: Am 2005 No 96, Sch 1 [6]; 2012 No 97, Sch 1.34 [1]; 2024 No 20, Sch 9[5]–[8].

(1) Application of section This section applies to scheduled activities where Schedule 1 indicates that a licence is required for premises at which the activity is carried on.

(2) Offence A person who is the occupier of any premises at which any such scheduled activity is carried on is guilty of an offence, unless the person is, at the time that activity is carried on, the holder of a licence that authorises that activity to be carried on at those premises.

Maximum penalty—

(a)  in the case of a corporation—$2,000,000 and, in the case of a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b)  in the case of an individual—$500,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues.

Note—

An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.

s 48: Am 2005 No 96, Sch 1 [7]; 2012 No 97, Sch 1.34 [2]; 2024 No 20, Sch 9[5]–[8].

(1) Application of section This section applies to scheduled activities where Schedule 1 indicates that a licence is required to carry on the activity, but not for the premises at which the activity is carried on.

(2) Offence A person who carries on any such scheduled activity is guilty of an offence, unless the person is, at the time that activity is carried on, the holder of a licence that authorises that activity to be carried on.

Maximum penalty—

(a)  in the case of a corporation—$2,000,000 and, in the case of a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b)  in the case of an individual—$500,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues.

Note—

An offence against subsection (2) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.

(3) Exception A person engaged in carrying on an activity by the holder of a licence that authorises that activity is not required to hold a licence for that activity.

s 49: Am 2005 No 96, Sch 1 [8]; 2012 No 97, Sch 1.34 [3]; 2024 No 20, Sch 9[5]–[8].

(1) Licensing of development controlled under EP&A Act This section applies to development that cannot be carried out without development consent under the Environmental Planning and Assessment Act 1979. This development is called controlled development in this section.

(2) Licence to be concurrent A licence that relates to controlled development must not be granted or varied (other than on the initiative of the EPA) by the appropriate regulatory authority, unless development consent has been granted for the controlled development. However, this section does not prevent the consideration of a licence application by the appropriate regulatory authority before development consent is granted.

(3) Existing use Without limiting the above, this section does not apply to the extent that development consent is not necessary under the Environmental Planning and Assessment Act 1979 because of an existing use.

(4) Definitions In this section—

development has the same meaning as in the Environmental Planning and Assessment Act 1979.

development consent means consent under Part 4 of the Environmental Planning and Assessment Act 1979, and includes approval to carry out a project or infrastructure under Part 3A or Division 5.2 of that Act.

existing use has the same meaning as in Division 4.11 of the Environmental Planning and Assessment Act 1979.

s 50: Am 2005 No 96, Sch 1 [9] [10]; 2011 No 22, Sch 2.22 [1] [2]; 2022 No 3, Sch 5[3] [4].

(1)  The issue of a licence in relation to integrated development within the meaning of section 4.46 of the Environmental Planning and Assessment Act 1979 is subject to Division 4.8 of that Act.

(2)  A decision by the appropriate regulatory authority on whether it will issue a licence, or on the general terms of a licence it proposes to issue, in relation to integrated development is subject to the provisions of this Chapter (including section 45).

(3)  A person to whom such a licence is issued after the commencement of this section cannot question the validity of the licence on the ground of failure to comply with any relevant provisions of that Act in any legal proceedings except those commenced in the Land and Environment Court by the person before the end of the period within which an appeal under section 287 can be lodged against the decision to issue the licence.

s 51: Am 1998 No 54, Sch 1.14 [1]; 2022 No 3, Sch 5[5] [6].

(1)  If, because of the enactment or the amendment or replacement of Schedule 1, it would become necessary for a person to be authorised by a licence to continue to carry out any work or activity, a licence is not required until the later of the following—

(a)  the end of the prescribed period after the commencement of Schedule 1 or of the amendment or replacement,

(b)  the relevant licence application (if any) made before the end of that period by the person has been finally determined.

(2)  The regulations may make provision excluding the issue of the licence from the application of Part 5 of the Environmental Planning and Assessment Act 1979.

(3)  This section does not apply to any work or activity for which a licence or approval was required, under an Act repealed by this Act, immediately before its repeal.

Note—

Schedule 5 makes provision for licences under an Act repealed by this Act to be taken to be licences issued under this Act.

(1)  An application may be made to the appropriate regulatory authority for the issue of a licence.

(2)  The application must—

(a)  be made in or to the effect of a form approved by the appropriate regulatory authority, and

(b)  contain or be accompanied by such information as is required by the appropriate regulatory authority (as indicated in the form or in material accompanying the form), and

(c)  be accompanied by the fee prescribed by the regulations.

s 53: Am 2022 No 3, Sch 5[7].

(1)  An application may be made to the appropriate regulatory authority for the transfer of a licence to another person.

Note—

Section 59 requires the application to be made only with the consent in writing of the holder of the licence.

(2)  The application must—

(a)  be made in or to the effect of a form approved by the appropriate regulatory authority, and

(b)  contain or be accompanied by such information as is required by the appropriate regulatory authority (as indicated in the form or in material accompanying the form), and

(c)  be accompanied by the fee prescribed by the regulations.

s 54: Am 2022 No 3, Sch 5[8].

(1)  The appropriate regulatory authority may—

(a)  in relation to an application for the issue of a licence—

(i)  grant the application by issuing the licence, or

(ii)  refuse the application, and

(b)  in relation to an application for the transfer of a licence—

(i)  grant the application by transferring the licence, or

(ii)  refuse the application.

(2)  The appropriate regulatory authority must not refuse the application unless before doing so—

(a)  it has given notice to the applicant that it intends to do so, and

(b)  it has specified in that notice the reasons for its intention to do so, and

(c)  it has given the applicant a reasonable opportunity to make submissions in relation to the matter, and

(d)  it has taken into consideration any such submissions by the applicant.

(3)  If the appropriate regulatory authority grants an application for the transfer of a licence, the licence is, subject to any variation of the conditions of the licence under section 58(4), transferred subject to the conditions to which the licence is subject at the time of the transfer.

Note—

Section 287 enables appeals to be made in connection with licence applications within a specified period after the person is given notice of the decision concerned. The section provides that the person may appeal if the licence application is not determined within 60 days, and for the purposes of the appeal the licence application is taken to have been refused.

s 55: Am 2022 No 3, Sch 5[9]–[11].

(1)  A licence is to specify the premises to which it applies.

(2)  The premises so specified are to be the whole of the premises at which the activities authorised or controlled by the licence (and ancillary activities) are carried on.

(3)  Premises may be so specified whether or not they comprise a single allotment of land.

(4)  This section does not apply to a licence required under section 49 that is not related to premises.

(1)  The holder of a licence must in each year pay to the appropriate regulatory authority, before the date prescribed by the regulations for the purpose, annual licence fees prescribed by or determined under the regulations.

(2)  The regulations may make provision for or with respect to the payment of annual licence fees by instalments.

(3)  If an annual licence fee is to be determined by the appropriate regulatory authority under the regulations, the appropriate regulatory authority must, not less than one month before the date prescribed for payment of the fee, notify the holder of the licence of the fee so determined.

(4)  If the holder of a licence fails to pay an annual licence fee in accordance with this section, the appropriate regulatory authority may, by notice in writing, require the holder to make good the default and, in addition, to pay to the appropriate regulatory authority in accordance with the notice an additional amount prescribed as a penalty for default.

(5)  If a fee or other amount due and payable under this Act or the regulations in relation to a licence is unpaid, the appropriate regulatory authority—

(a)  may recover the fee or other amount from the current holder of the licence (or the last holder of the licence if the licence has ceased to be in force), or

(b)  may recover that part of the fee or other amount that relates to a period for which an earlier holder of the licence held the licence from that earlier holder,

as a debt.

(6)  This section does not apply to licences of a prescribed class or description.

(7)  Nothing in this section precludes the regulations from requiring payment of the first or other specified licence fee in respect of a shorter or longer period than 12 months. In that case, a reference in this Act to an annual fee is to be construed accordingly.

Note—

Schedule 2 contains regulation-making powers with respect to the amount of fees, including provision relating to the scheme known as “load-based licensing”.

s 57: Am 1999 No 31, Sch 1.37 [1]; 2005 No 96, Sch 1 [11].

(1)  The appropriate regulatory authority may vary a licence, including the conditions of the licence.

(2)  A variation includes the following—

(a)  attaching a condition to a licence, whether or not conditions are already attached to the licence,

(b)  substituting, omitting or amending a condition of a licence.

(3)  A licence may be varied—

(a)  on application and payment of the fee prescribed by the regulations by the holder of the licence, or

(b)  on the initiative of the appropriate regulatory authority.

(3A)  The regulations may also provide for the waiver or refund of the fee in the circumstances prescribed by the regulations.

(4)  A licence may be varied at any time during its currency, including on its being transferred to another person.

(5)  A licence is varied by notice in writing given to the holder of the licence.

(6)  If—

(a)  the variation of a licence will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence, and

(b)  the proposed variation has not, for any reason, been the subject of environmental assessment and public consultation under the Environmental Planning and Assessment Act 1979,

the appropriate regulatory authority is to invite and consider public submissions before it varies the licence.

s 58: Am 2022 No 3, Sch 5[12] [13]; 2024 No 20, Sch 9[9].

(1)  An application for the issue of a licence that relates to premises may be made only by or with the consent in writing of the occupier of the premises.

(2)  An application for the variation of a licence may be made only by or with the consent in writing of the holder of the licence.

(3)  An application for the transfer of a licence may be made only with the consent in writing of the holder of the licence.

(1)  If a licence application has been made, the appropriate regulatory authority may, by notice in writing given to the applicant, require the applicant to supply to the appropriate regulatory authority such further information as the appropriate regulatory authority considers necessary and relevant to the application and specifies in the notice.

(2)  In this section—

information includes plans and specifications.

s 60: Am 2002 No 14, Sch 2 [1]; 2005 No 96, Sch 1 [12].

(1)  If a licence application (other than an application for the approval of the surrender of a licence) is granted or refused, any person may make a written request to the appropriate regulatory authority for the reasons for the grant or refusal of the application and the appropriate regulatory authority is to provide a written statement of the reasons to the person.

(2)  The regulations may make provision with respect to any such statement of reasons, including—

(a)  the time within which a request for reasons must be made or within which the statement of reasons must be provided, and

(b)  the matters to be set out in a statement of reasons, and

(c)  the cases in which a statement of reasons is not required to be provided.

(3)  Without limiting subsection (2), a statement of reasons is not required to be provided to a person if the person has already been notified of the reasons under section 55.

s 61: Am 2002 No 14, Sch 2 [2].

On an application being made under this Chapter, the applicant, if not entitled to copyright, is taken to have indemnified all persons using the application and supporting documents in accordance with this Act, against any claim or action in respect of breach of copyright.

Note—

Schedule 2 enables regulations to be made with respect to the amendment or variation of applications under this Chapter.

(1)  A licence may be issued subject to conditions or unconditionally.

Note—

Section 58 deals with the variation of a licence so as to attach, substitute, omit or amend conditions.

(2)  A condition cannot be attached to a licence if compliance with the condition would result in a breach of a requirement made by or under this Act.

(3)  If the holder of a licence cannot meet any requirement made by or under this Act without contravening a condition of the licence, the holder is, by meeting the requirement, taken to comply with the condition.

(1) Offence If any condition of a licence is contravened by any person, each holder of the licence is guilty of an offence.

Maximum penalty—

(a)  in the case of a corporation—$2,000,000 and, in the case of a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b)  in the case of an individual—$500,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues.

Note—

An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.

(2) Defence 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.

A person is associated with the holder for the purposes of paragraph (b) (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the holder.

(3)  This section extends to conditions to which the suspension, revocation or surrender of a licence is subject under section 81, including a condition varied under section 81A.

(4)  For the purposes of subsection (3), a reference to the holder of the licence includes a reference to—

(a)  the former holder of the licence, and

(b)  another person required to comply with the condition or to whom the condition applies.

s 64: Am 2005 No 96, Sch 1 [13]; 2012 No 97, Sch 1.34 [4]; 2022 No 3, Sch 5[14]; 2024 No 20, Sch 9[5]–[8].

This Part contains examples of conditions that can be attached to a licence. Accordingly, nothing in this Part prevents other conditions being attached to a licence.

(1) Monitoring The conditions of a licence may require—

(a)  monitoring by the holder of the licence of the activity or work authorised, required or controlled by the licence, including with respect to—

(i)  the operation or maintenance of premises or plant, and

(ii)  discharges from premises, and

(iii)  relevant ambient conditions prevailing on or outside premises, and

(iv)  anything required by the conditions of the licence, and

(b)  the provision and maintenance of appropriate measuring and recording devices for the purposes of that monitoring, and

(c)  the analysis, reporting and retention of monitoring data.

(2) False or misleading information A holder of a licence who supplies information, or on whose behalf information is supplied, to the appropriate regulatory authority under the conditions of the licence is guilty of an offence if the information is false or misleading in a material respect.

Maximum penalty—

(a)  in the case of a corporation—$2,000,000, or

(b)  in the case of an individual—$500,000.

(2A) Conditions relating to certain information The conditions of a licence may require the holder of a licence to supply to the appropriate regulatory authority information relating to a pollution incident to which Part 5.7 applies in addition to the information required under that Part.

(3) Certification The conditions of a licence may require the holder of the licence to supply to the appropriate regulatory authority a statement that is certified by the holder, by another person approved by that authority or by a person prescribed by the regulations, as correct and that states all or any of the following—

(a)  the extent to which the conditions of the licence, or any provisions of the regulations applicable to the activity or work authorised, required or controlled by the licence, have or have not been complied with,

(b)  particulars of any failure to comply with the conditions or any such regulations,

(c)  the reasons for any failure to comply with the conditions or any such regulations,

(d)  any action taken, or to be taken, to prevent any recurrence of that failure or to mitigate the effects of that failure,

(e)  the fee paid or payable in relation to the licence (including the manner of calculation of the fee or other specified aspect of the fee).

(4) False or misleading certificates A person who gives a certificate for the purposes of a condition referred to in this section is guilty of an offence if any of the statements certified is false or misleading in a material respect.

Maximum penalty—

(a)  for a corporation—$1,000,000, or

(b)  for an individual—$500,000.

(5) Use of information or statements Any information or statements supplied to the appropriate regulatory authority for the purposes of a condition referred to in this section may be taken into consideration by that authority and used for the purposes of this Act. Without limiting the above, any such information and statements are admissible in evidence in any prosecution of the holder of the licence for any offence against this Act or the regulations, whether or not the information or statements might incriminate that holder.

(6) Publication of results of monitoring The holder of a licence subject to a condition referred to in subsection (1) (a) must, within 14 days of obtaining monitoring data as referred to in that subsection—

(a)  if the holder maintains a website that relates to the business or activity the subject of the licence—make any of the monitoring data that relates to pollution, and the licensee’s name, publicly and prominently available on that website in accordance with any requirements issued in writing by the EPA, or

(b)  if the holder does not maintain such a website—provide a copy of any of the monitoring data that relates to pollution, to any person who requests a copy of the data, at no charge and in accordance with any requirements issued in writing by the EPA.

Maximum penalty—

(a)  for a corporation—$20,000, or

(b)  for an individual—$10,000.

(7) False or misleading publication of results A person who makes available or provides monitoring data in accordance with subsection (6) is guilty of an offence if the monitoring data is false or misleading in a material respect.

Maximum penalty—

(a)  for a corporation—$20,000, or

(b)  for an individual—$10,000.

Note—

An offence against subsection (2) or (4) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.

s 66: Am 2002 No 14, Sch 2 [3]; 2005 No 96, Sch 1 [14]–[18]; 2011 No 63, Sch 2 [1]; 2012 No 97, Sch 1.34 [5]; 2022 No 3, Sch 5[15]–[17]; 2024 No 20, Sch 9[5] [7] [10].

The conditions of a licence may require the holder of the licence to comply with the requirements of a mandatory environmental audit program, in accordance with Chapter 6.

(1)  The conditions of a licence may require the holder of the licence to undertake and submit to the appropriate regulatory authority studies into any aspect of the environmental impact of the activity or work authorised or controlled by the licence.

(2)  The conditions of a licence may require the holder of the licence—

(a)  to develop and submit to the appropriate regulatory authority a pollution reduction program and to comply with the program as approved by the appropriate regulatory authority, or

(b)  to comply with a pollution reduction program determined by the appropriate regulatory authority.

(3)  A pollution reduction program may include but is not limited to requirements to carry out works or to install plant for the purpose of preventing, controlling, abating or mitigating pollution.

(4)  The appropriate regulatory authority may approve a pollution reduction program with or without alterations.

The conditions of a licence may implement or otherwise relate to—

(a)  tradeable emission schemes, or

(b)  green offset schemes or works, or

(c)  other schemes involving economic measures, or

(d)  environmental monitoring programs,

as referred to in Part 9.3, 9.3A, 9.3B or 9.3C.

Note—

Conditions relating to tradeable emission schemes or green offset schemes or works may also be attached to licences by the regulations (see Parts 9.3A and 9.3B).

s 69: Am 2000 No 91, Sch 1 [1]. Subst 2005 No 96, Sch 1 [19]. Am 2010 (85), Sch 1 [1] [2].

This chapter extends to the exercise of a function relating to licence conditions under Part 9.3E.

s 69A: Am 2024 No 10, Sch 1[2].

The conditions of a licence, including the conditions of the suspension, revocation or surrender of a licence, may require the holder or former holder of the licence to provide financial assurances, as provided by Part 9.4.

s 70: Subst 2005 No 96, Sch 1 [20].

The conditions of a licence may require the holder of the licence to carry out remediation work in connection with the carrying out of the activities or works authorised or controlled by the licence.

The conditions of a licence may require the holder of the licence to take out and maintain a policy of insurance for the payment of costs for clean-up action, and for claims for compensation or damages, resulting from pollution in connection with the activity or work authorised or controlled by the licence.

(1)  The conditions of a licence may provide that an authorisation conferred by the licence or a variation of the licence is not to take effect until the end of a specified period or on the happening of a particular event or on the occurrence of a specified state of affairs.

(2)  Without limiting the generality of the above, the conditions may provide that an authorisation or variation will not take effect until a financial assurance is provided in accordance with the condition.

(3)  This section is subject to section 84 (Date from which decision operates).

The conditions of a licence may require the holder to enter into or arrange for a positive covenant under section 88E of the Conveyancing Act 1919, and to arrange for its registration, for the purpose of ensuring that specified requirements of a condition run with the land concerned.

(1) Information about waste The conditions of a licence may require the holder of the licence to provide to the appropriate regulatory authority information relating to the creation, collection, storage, handling, transportation, treatment, processing, recovery, recycling, re-use or disposal of waste.

(2) Environmental waste management plan The conditions of a licence may require the holder of the licence to prepare, and comply with, an environmental waste management plan. Such a plan is to set out the manner in which the holder proposes to carry out the activity or work authorised or controlled by the licence in order to achieve the required environmental outcomes, and may include a closure plan as referred to in section 76.

Note—

A draft plan may be required to accompany a licence application—see section 53.

(3)    (Repealed)

(4) Waste received at premises The conditions of a licence may include the following—

(a)  conditions relating to the storage, handling or disposal of waste received at the premises to which the licence applies,

(b)  conditions requiring the holder of the licence to take only certain classes and quantities of waste at those premises, or requiring the holder to refuse to accept certain classes and quantities of waste at those premises,

(c)  conditions requiring the holder of the licence to provide incentives to encourage separation of waste delivered to those premises.

(5) Other waste matters The conditions of a licence may include the following—

(a)  conditions relating to the storage, handling, treatment and processing of waste,

(b)  conditions imposing responsibility on the holder of the licence for the proper disposal of waste transported from the premises to which the licence applies,

(c)  conditions requiring the holder of the licence to report to the appropriate regulatory authority on any matters concerning waste transported from those premises,

(d)  conditions requiring the holder of the licence to implement a re-use, recovery, recycling or take-back and utilisation scheme in respect of any product or item manufactured or sold by the holder that creates waste.

(6) Transporting waste The conditions of a licence may include the following—

(a)  conditions relating to the construction, maintenance and cleaning of any container, vehicle or vessel used by the holder of the licence to transport waste,

(b)  conditions relating to the times during which, the routes along which, and the waste facilities to which, waste may be transported by the holder of the licence,

(c)  conditions imposing responsibility on the holder of the licence for the proper handling and disposal of waste transported by the holder.

s 75: Am 2001 No 58, Sch 2 [4]; 2005 No 96, Sch 1 [21]–[23].

(1)  The conditions of a licence, including the conditions of the suspension, revocation or surrender of a licence, may require—

(a)  the holder of the licence to submit to the appropriate regulatory authority a closure plan in relation to the premises to which the licence applies or applied, and

(b)  the last licensee to implement a closure plan approved by the appropriate regulatory authority.

(2)  A closure plan in relation to premises that is required to be submitted to an appropriate regulatory authority under the conditions of a licence must—

(a)  specify the steps taken (or to be taken) in closing, stabilising or rehabilitating the premises and the time-frame for doing so, and

(b)  provide for a post-closure monitoring and maintenance program, and

(c)  identify any proposed future uses of the premises, and

(d)  comply with any other specified requirements relating to the plan.

(3)  The appropriate regulatory authority may approve the closure plan as submitted to it, or may vary the plan before approving it.

(4)  In this section—

last licensee means the person who was the holder of a licence for any premises immediately before the licence ceased to be in force.

s 76: Subst 2005 No 96, Sch 1 [24].

(1)  Once a licence comes into force, the licence remains in force until it is suspended, revoked or surrendered.

(2)  The licence is, while it remains in force, subject to any variations made to the licence under this Act.

(1)  The appropriate regulatory authority is required to review each licence at intervals not exceeding 5 years after the issue of the licence.

(2)  The appropriate regulatory authority must give public notice of the licences that are to be reviewed as follows—

(a)  not less than 1 month, and not more than 6 months, before the review is undertaken, a notice of the review of each licence is to be published on the website of the EPA,

(b)    (Repealed)

(c)  the notice is to specify the activity or work to which the licence relates and the address of the premises (if any) at which it is carried out.

(3)  Any failure by the EPA to comply with the requirements of this section to review a licence is to be reported by the EPA to the Board of the EPA, and in the annual report of the EPA, together with a statement of reasons for the failure.

(4)  Any failure by a regulatory authority (other than the EPA) to comply with the requirements of this section to review a licence is to be reported to the EPA by that authority.

(4A)  The EPA must audit, on an industry wide or regional basis, compliance with licence requirements under this Act and whether such requirements reflect best practice in relation to the matters regulated by the licences.

(5)  Any failure to comply with the requirements of this section cannot be the subject of proceedings under this Act.

s 78: Am 2005 No 96, Sch 1 [25] [26]; 2017 No 21, Sch 3 [3].

(1)  The appropriate regulatory authority may suspend or revoke a licence during its currency.

(2)  A suspension or revocation of a licence is effected by notice in writing given to the holder of the licence.

(3)  A suspension may be for a specified period, or until the fulfilment of specified conditions, or until further order of the appropriate regulatory authority.

(3A)  A licence may be revoked during the currency of a suspension.

(4)  The appropriate regulatory authority is not required to give the holder of a licence notice of the authority’s intention to suspend or revoke the licence (whether with or without conditions imposed under section 81) before giving a notice under subsection (2).

(5)  The reasons for suspending or revoking a licence may include (but are not limited to) the following—

(a)  the holder of the licence has obtained the licence improperly,

(a1)  the holder of the licence has contravened this Act or regulations made under this Act,

(b)  a condition of the licence has been contravened,

(c)  the scheduled development work to which the licence relates has not been commenced or completed and the appropriate regulatory authority is of the opinion that it is no longer appropriate that the work be carried out or completed,

(d)  the activities covered by the licence are completed or no longer being carried on,

(e)  the holder has failed to pay the annual licence fee by the due date for its payment,

(e1)  the holder is liable to pay a contribution in respect of waste under section 88 and has failed to pay the contribution by the due date for its payment,

(f)  in the opinion of the appropriate regulatory authority, the holder of the licence is no longer a fit and proper person.

Note—

See section 83 for provisions relating to the determination of whether a person is a fit and proper person for the purposes of this section.

(6)  No fees are refundable on the suspension or revocation of a licence.

s 79: Am 1999 No 31, Sch 1.37 [2]; 2001 No 56, Sch 1.14 [1]; 2005 No 96, Sch 1 [27] [28]; 2014 No 65, Sch 2.1 [1]; 2018 No 25, Sch 1.19 [1] [2]; 2024 No 20, Sch 9[11].

(1)  A licence may, on the written application of the holder of the licence, be surrendered with the written approval of the appropriate regulatory authority.

(1A)  If an application for approval of the surrender of a licence has been made, the appropriate regulatory authority may, by notice in writing given to the applicant, require the applicant to supply to the appropriate regulatory authority such further information as the appropriate regulatory authority considers necessary and relevant to the application and specifies in the notice.

(1B)  Without limiting the grounds for refusal, an appropriate regulatory authority may refuse an application for surrender of a licence relating to a scheduled activity if it is of the opinion that—

(a)  there will be an ongoing environmental impact arising from the activity after the activity ceases to be carried on, and

(b)  it is appropriate to manage that impact through conditions of the licence.

(2)  If an application for the approval of the surrender of a licence is granted or refused, any person may make a written request to the appropriate regulatory authority for the reasons for the grant or refusal of the application and the appropriate regulatory authority is to provide a written statement of the reasons to the person.

(2A)  The regulations may make provision with respect to any such statement of reasons, including—

(a)  the time within which a request for reasons must be made or within which the statement of reasons must be provided, and

(b)  the matters to be set out in a statement of reasons, and

(c)  the cases in which a statement of reasons is not required to be provided.

(3)    (Repealed)

s 80: Am 1999 No 31, Sch 1.37 [3] [4]; 2002 No 14, Sch 2 [4]; 2004 No 55, Sch 1.20 [1]; 2005 No 96, Sch 1 [29].

(1)  A licence may be suspended or revoked, or the surrender of a licence may be approved, unconditionally or subject to such conditions as the appropriate regulatory authority imposes.

(2)  Those conditions may include (but are not limited to) any conditions to which the licence was subject immediately before it was suspended, revoked or surrendered.

(3)  The appropriate regulatory authority may, by notice in writing given to the former holder of the licence, attach new conditions to, or vary or revoke any existing conditions of, the suspension, revocation or surrender of the licence.

Note—

Section 64 makes it an offence to breach conditions under this section.

(1)  This section applies if a condition of the suspension, revocation or surrender of a licence requires the holder, or former holder, of the licence to do any of the following—

(a)  carry out work or programs, including remediation work or pollution reduction programs,

(b)  provide a financial assurance under Part 9.4,

(c)  otherwise do an activity or thing.

(2)  A person other than the holder, or former holder, of the licence may apply to the appropriate regulatory authority to vary the condition to require the person, instead of or in addition to the holder, or former holder, of the licence to do any of the following—

(a)  carry out the work or programs,

(b)  provide the financial assurance,

(c)  do the activity or thing.

(3)  The application must be made with the written consent of the holder, or former holder, of the licence unless it is not reasonably practicable to obtain the consent of the holder, or former holder, of the licence.

(4)  The application must—

(a)  be made in the form approved by the appropriate regulatory authority, and

(b)  include or be accompanied by the information indicated in the form, or in material accompanying the form, as being required by the appropriate regulatory authority, and

(c)  be accompanied by the fee prescribed by the regulations.

s 81A: Ins 2022 No 3, Sch 5[18].

(1)  If the holder of a licence is convicted of a major pollution offence, the Minister may, by notice in writing given to the holder—

(a)  revoke the licence, or

(b)  suspend the licence for such period as the Minister thinks fit.

(2)  In this section—

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).

s 82: Am 2005 No 96, Sch 1 [30].

(1)  This section has effect in determining whether a person is a fit and proper person for section 45(f), 79(5)(f) or 253B(1)(a) but does not limit the section.

(2)  The appropriate regulatory authority may take into consideration any or all of the following—

(a)  whether the person has—

(i)  contravened environment protection legislation or other relevant legislation, or

(ii)  held a licence or other authority that has been suspended or revoked under environment protection legislation or other relevant legislation,

(b)  if the person is a corporation—whether a director or former director of the corporation or a related body corporate has—

(i)  contravened environment protection legislation or other relevant legislation, or

(ii)  held a licence or other authority that has been suspended or revoked under environment protection legislation or other relevant legislation,

(c)  if the person is a corporation—whether a director or former director of the corporation or a related body corporate is or has been the director of another corporation that has—

(i)  contravened environment protection legislation or other relevant legislation, or

(ii)  held a licence or other authority that has been suspended or revoked under environment protection legislation or other relevant legislation,

(d)  the person’s record of compliance with environment protection legislation,

(e)  if the person is a corporation—the record of compliance with environment protection legislation of each director or former director of the corporation or a related body corporate,

(f)  whether, in the appropriate regulatory authority’s opinion, the management of the activities or works that are or are to be authorised, required or regulated under the relevant licence will or will not be in the hands of a technically competent person,

(g)  whether, in the appropriate regulatory authority’s opinion, the person is of good repute, having regard to character, honesty and integrity,

(h)  if the person is a corporation—whether each director and former director of the corporation or a related body corporate is, in the appropriate regulatory authority’s opinion, of good repute, having regard to character, honesty and integrity,

(i)  whether the person, in the previous 10 years, has been convicted in New South Wales or elsewhere of an offence involving fraud or dishonesty,

(j)  if the person is a corporation—whether a director or former director of the corporation or a related body corporate, in the previous 10 years, has been convicted in New South Wales or elsewhere of an offence involving fraud or dishonesty,

(k)  whether the person, during the previous 3 years, was personally insolvent,

(l)  if the person is a corporation—whether a director or former director of the corporation or a related body corporate, during the previous 3 years and while a director of the corporation or related body corporate, was personally insolvent,

(m)  if the person is a corporation—whether the person or a related body corporate applied to take the benefit of a law for the relief of insolvent debtors or compounded with the person’s or body corporate’s creditors,

(n)  if the person is an individual—whether the person is or was a director of a corporation that—

(i)  is the subject of a winding up order, or

(ii)  has had a controller or administrator appointed during the previous 3 years,

(o)  if the person is a corporation—whether the corporation—

(i)  is the subject of a winding up order, or

(ii)  has had a controller or administrator appointed during the previous 3 years,

(p)  whether the person has demonstrated to the EPA the financial capacity to comply with the person’s obligations under or in connection with the licence or proposed licence,

(q)  whether the person is in partnership, in connection with activities that are subject to a licence or licence application, with a person whom the appropriate regulatory authority does not consider to be a fit and proper person under this section,

(r)  if the person is a corporation—whether a related body corporate is in partnership with a person whom the appropriate regulatory authority does not consider to be a fit and proper person under this section,

(s)  another ground prescribed by the regulations.

(3)  A reference in subsection (2) to a director of a body corporate extends to a person involved in the management of the affairs of the body corporate.

(4)  Without limiting the generality of the above, the appropriate regulatory authority may disregard contraventions referred to in subsection (2) having regard to the seriousness of the contraventions, the length of time since they occurred, and other matters that appear relevant to the appropriate regulatory authority.

(5)  For the purposes of this section, other relevant legislation is any legislation declared by the regulations to be other relevant legislation for the purposes of this section. The regulations may so declare legislation that has been repealed or legislation of a place outside the State.

s 83: Am 2001 No 56, Sch 1.14 [2]–[4]; 2005 No 96, Sch 1 [31]; 2018 No 25, Sch 1.19 [3]; 2022 No 3, Sch 5[19]–[24]; 2024 No 20, Sch 9[12].

(1)  A decision of the appropriate regulatory authority regarding a licence operates from the date of the decision or another date specified by the appropriate regulatory authority, except as provided by this section.

(2)  If an appeal is made against a decision of the appropriate regulatory authority to vary, suspend or revoke a licence, to approve or refuse the surrender of a licence subject to conditions, or to attach any new conditions to, or vary any conditions of, a suspension, revocation or surrender of a licence and the Land and Environment Court directs that the decision is stayed, the decision does not operate until the stay ceases to have effect or the Land and Environment Court confirms the decision or the appeal is withdrawn, whichever first occurs.

(3)  A decision of the appropriate regulatory authority to approve the surrender of a licence without any condition operates from the time the authority notifies the licensee in writing of the decision.

(4)    (Repealed)

s 84: Am 1999 No 31, Sch 1.37 [5]; 2001 No 56, Sch 1.14 [5] [6]; 2005 No 96, Sch 1 [32] [33].

(1)  If the holder of a licence dies, the legal personal representative of the holder or a person approved by the appropriate regulatory authority is taken to be the holder of the licence as if it had been transferred to the representative or person.

(2)  Subsection (1) does not prevent the suspension, revocation or surrender of the licence in accordance with this Act.

(1)  If the occupier of any premises carries out work at the premises in contravention of Part 3.2, the appropriate regulatory authority may, by notice in writing given to the occupier, require the occupier—

(a)  to remove the work that has been carried out, or

(b)  to restore the premises to their previous state,

within such time as may be specified in the notice.

(2)  A notice under this section operates from the day the notice is given or from such later day as the notice specifies.

(2A)  If an appeal is made against a notice under this section and the Land and Environment Court directs that the notice is stayed, the notice does not operate until the stay ceases to have effect or the Land and Environment Court confirms the notice or the appeal is withdrawn, whichever first occurs.

(3)  A person who contravenes the requirements of a notice under this section is guilty of an offence.

Maximum penalty—

(a)  in the case of a corporation—$2,000,000 and, in the case of a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b)  in the case of an individual—$500,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues.

Note—

An offence against subsection (3) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.

s 86: Am 2005 No 96, Sch 1 [34] [35]; 2012 No 97, Sch 1.34 [6]; 2024 No 20, Sch 9[5]–[8].

(1)  This section applies to waste facilities that are required to be licensed under this Chapter.

(2)  The occupier of a waste facility to which this section applies is required to pay to the EPA in respect of all waste received at the facility such contribution as is prescribed by the regulations.

(3)  An occupier who fails to pay the whole or any part of the contribution payable by the occupier under this section—

(a)  in the manner (if any) prescribed by the regulations or as otherwise directed by the EPA by notice in writing given to the occupier, or

(b)  within the time or at such intervals as prescribed by the regulations, or within the time or at such intervals as may be otherwise directed by the EPA by notice in writing given to the occupier,

is guilty of an offence.

Maximum penalty—

(a)  in the case of a corporation—$2,000,000 and, in the case of a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b)  in the case of an individual—$500,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues.

(4)    (Repealed)

(5)  The regulations may—

(a)  provide for contributions to be calculated on such basis (including such estimates), and in accordance with such factors, as may be specified or described in the regulations, and

(b)  provide for the exemption of specified occupiers, or specified classes of occupiers, from the requirement to pay contributions, and

(c)  provide for the exemption of specified wastes from the calculation of contributions (including for example wastes that are recycled, re-used, recovered or processed), and

(d)  provide for the payment of rebates to specified occupiers or specified classes of occupiers.

(6)  Any contribution payable under this section becomes, if it is not paid in accordance with this section and the regulations, a debt due to the EPA that is recoverable in any court of competent jurisdiction.

(7)  Interest is payable on any unpaid contribution or any unpaid portion of the contribution under this section at such rate and calculated in such manner as may be prescribed by the regulations. Any such interest may be recovered in the same way as the contribution may be recovered.

(8)  In this section, liquid waste has the same meaning as it has in Schedule 1.

s 88: Am 2005 No 96, Sch 1 [37]–[41]; 2007 No 26, Sch 1 [1]–[3]; 2008 No 62, Sch 1.27 [1]; 2013 No 60, Sch 1 [1]; 2024 No 20, Sch 9[5]–[8].

In this Chapter—

clean-up notice means a notice under Part 4.2.

compliance cost notice means a notice under Part 4.5.

prevention notice means a notice under Part 4.3.

prohibition notice means a notice under Part 4.4.

Environment protection notices are of the following kinds—

(a)  clean-up notices,

(b)  prevention notices,

(c)  prohibition notices.

Note—

See also noise control notices under Part 8.6.

In this part—

preliminary investigation compliance notice—see section 90G(1).

preliminary investigation notice—see section 90B(2).

relevant circumstances—see section 90B(1).

s 90A: Ins 2024 No 20, Sch 9[14].

(1)  This section applies if the EPA reasonably suspects any of the following circumstances (relevant circumstances) may exist or have existed at premises—

(a)  circumstances that may pose a potential risk of harm to human health or the environment from—

(i)  a substance, or

(ii)  the deposit of waste or substances suspected of being waste,

(b)  a pollution incident.

(2)  The EPA may issue a person referred to in subsection (3) with a written notice (a preliminary investigation notice) to facilitate the EPA carrying out a preliminary investigation to determine whether the relevant circumstances exist.

(3)  A preliminary investigation notice may be issued to—

(a)  an owner or occupier of the premises, or

(b)  a person who has caused or contributed to, to any extent, the relevant circumstances which are the subject of the notice.

(4)  A person to whom a preliminary investigation notice is issued must comply with the notice.

Maximum penalty for subsection (4)—

(a)  for a corporation—$2,000,000 and, for a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b)  for an individual—$500,000 and, for a continuing offence, a further penalty of $120,000 for each day the offence continues.

s 90B: Ins 2024 No 20, Sch 9[14].

(1)  The EPA may give a preliminary investigation notice orally.

(2)  A preliminary investigation notice given orally to a person ceases to have effect 72 hours after it was given to the person unless the notice is confirmed by the EPA by a written preliminary investigation notice.

(3)  A notice given orally under subsection (1)—

(a)  has the same effect as a written preliminary investigation notice, and

(b)  is taken to be a preliminary investigation notice.

s 90C: Ins 2024 No 20, Sch 9[14].

(1)  A preliminary investigation notice may require the person to whom it is issued to assist the EPA to—

(a)  investigate whether the relevant circumstances exist, and

(b)  if the relevant circumstances exist—determine the nature and extent of the relevant circumstances, including the nature and extent of any harm or risk of harm to human health or the environment arising from the relevant circumstances.

(2)  Without limiting subsection (1), the preliminary investigation notice may require the person to whom it is issued to do the following—

(a)  collect samples of a substance and have the samples tested and analysed,

(b)  provide a report about the testing or analysis to the EPA,

(c)  preserve or prevent the disturbance of a specified substance or location at the premises for a period of time specified in the preliminary investigation notice, including—

(i)  moving a substance to a more secure location on the premises or on other premises, and

(ii)  restricting access to a substance or location, and

(iii)  preventing a substance from being removed from the premises.

s 90D: Ins 2024 No 20, Sch 9[14].

(1)  This section applies if —

(a)  a preliminary investigation notice (the previous preliminary investigation notice) has been given to a corporation by the EPA, and

(b)  the corporation has not complied with the previous preliminary investigation notice within the period specified in the notice.

(2)  The EPA may, by written notice (the supplementary preliminary investigation notice), direct 1 or more of the following to carry out, or ensure the carrying out of, the action specified in the preliminary investigation notice within the period specified in the notice—

(a)  a current director of the corporation,

(b)  a former director of the corporation,

(c)  a related body corporate.

(3)  The supplementary preliminary investigation notice may also require the person to whom the notice is given to provide reports to the EPA about progress on the carrying out of the action specified in the notice.

(4)  If the person given a supplementary preliminary investigation notice complies with the notice but was not the person who caused, or solely caused, the relevant circumstances, the cost, or part of the cost, of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from another person who caused or contributed to the relevant circumstances.

(5)  A reference in subsection (2) to a director of a corporation extends to a person involved in the management of the affairs of the corporation.

s 90E: Ins 2024 No 20, Sch 9[14].

If a person does not comply with a preliminary investigation notice given to the person or the EPA otherwise believes it would be appropriate, the EPA may—

(a)  take action to comply with the notice itself or by its employees, agents or contractors, and

(b)  recover the relevant costs under sections 90G and 90H.

s 90F: Ins 2024 No 20, Sch 9[14].

(1)  If the EPA gives a preliminary investigation notice to a person, the EPA may, by written notice (a preliminary investigation compliance notice) given to the person, require the person to pay all or any reasonable costs and expenses incurred by the EPA in connection with—

(a)  taking action or monitoring under the preliminary investigation notice, and

(b)  ensuring the notice is complied with, and

(c)  other associated matters.

(2)  If the EPA takes action under section 90F because a preliminary investigation notice is not complied with or the EPA otherwise believes it would be appropriate, the EPA may, by written notice, require the person to whom the notice was given or a person who caused or contributed to the relevant circumstances to pay all or any reasonable costs and expenses incurred by the EPA in taking the action.

s 90G: Ins 2024 No 20, Sch 9[14].

(1)  The EPA may recover any unpaid amounts specified in a preliminary investigation compliance notice as a debt in a court of competent jurisdiction.

(2)  If the person given a preliminary investigation compliance notice complies with the notice but was not the person who caused or contributed to the relevant circumstances, the cost of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from the person who caused or contributed to the relevant circumstances.

s 90H: Ins 2024 No 20, Sch 9[14].

(1)  This section applies if—

(a)  a person (the first person) carries out the requirements of a preliminary investigation notice, and

(b)  another person (the second person) is issued an environment protection notice or recall notice in relation to the relevant circumstances the subject of the preliminary investigation notice.

(2)  The first person may recover the first person’s costs in carrying out the requirements from the second person if the second person contributed to the relevant circumstances.

(3)  For this section, the costs of the first person in carrying out the requirements of the preliminary investigation notice include any amount for which the first person is liable, or reasonable cost the first person has a duty to meet, under section 90G.

s 90I: Ins 2024 No 20, Sch 9[14].

(1) Notices The appropriate regulatory authority may, by notice in writing, do 1 or more of the following—

(a)  direct an owner or occupier of premises at or from which the authority reasonably suspects that a pollution incident has occurred or is occurring,

(b)  direct a person who is reasonably suspected by the authority of causing or having caused a pollution incident,

(c)  direct a person who is reasonably suspected by the authority of contributing, to any extent, to a pollution incident,

to take such clean-up action as is specified in the notice and within such period as is specified in the notice.

Note—

pollution incident and clean-up action are defined in the Dictionary.

(1A)  The appropriate regulatory authority may give a clean-up notice to a person under subsection (1)(c)—

(a)  whether or not another person has been given a clean-up notice in relation to the pollution incident, and

(b)  whether or not another person contributed to the pollution incident.

(1B)  Without limiting subsection (1), a clean-up notice given to a person under subsection (1)(c) may require the person to carry out clean-up actions to completely prevent, minimise, remove, disperse, destroy or mitigate pollution resulting or likely to result from the incident irrespective of the nature or extent of the person’s contribution to the incident.

(2) Notices by EPA in emergency The EPA may, if it considers that it is necessary to do so because of an emergency, give the clean-up notice even if it is not the appropriate regulatory authority with respect to the pollution incident.

(3) Reports The clean-up notice may require the person to whom the notice is given to furnish reports to the appropriate regulatory authority regarding progress on the carrying out of the clean-up action.

(4)  If the person given a clean-up notice complies with the notice but was not the person who caused, or solely caused, the pollution incident, the cost, or part of the cost, of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from any person who caused or contributed to the pollution incident.

(5)    (Repealed)

Note—

See also section 144AG, which provides that this part applies to the depositing of litter or waste referred to in section 144AE(1) or the depositing of litter under Part 5.6A as if the depositing of the litter or waste were a pollution incident.

s 91: Am 2005 No 96, Sch 1 [42]; 2012 No 97, Sch 1.34 [7]; 2014 No 65, Sch 2.1 [2]; 2022 No 3, Sch 5[25]–[30]; 2024 No 20, Sch 9[15] [16].

(1)  This section applies if —

(a)  a clean-up notice (the previous clean-up notice) has been given to a corporation—

(i)  by the appropriate regulatory authority under section 91(1), or

(ii)  by the EPA under section 91(2), and

(b)  the corporation has not complied with the previous clean-up notice within the period specified in the notice.

(2)  The appropriate regulatory authority may, by written notice (the supplementary clean-up notice), direct 1 or more of the following to carry out, or ensure the carrying out of, the clean-up action specified in the notice within the period specified in the notice—

(a)  a current director of the corporation,

(b)  a former director of the corporation,

(c)  a related body corporate.

(3)  The supplementary clean-up notice may require the person to whom the notice is given to provide reports to the appropriate regulatory authority about progress on the carrying out of the clean-up action.

(4)  If the EPA considers it necessary for the purposes of responding to an emergency, the EPA may give a supplementary clean-up notice under this section regardless of whether the EPA is the appropriate regulatory authority in relation to the pollution incident.

(5)  If the person given a supplementary clean-up notice complies with the notice but was not the person who caused, or solely caused, the pollution incident, the cost, or part of the cost, of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from another person who caused or contributed to the pollution incident.

(6)  A reference in subsection (2) to a director of a corporation extends to a person involved in the management of the affairs of the corporation.

s 91A: Ins 2022 No 3, Sch 5[31]. Am 2023 No 30, Sch 2.5[1].

A person who, without reasonable excuse, does not comply with a clean-up notice given to the person is guilty of an offence.

Maximum penalty—

(a)  for a corporation—$2,000,000 and, for a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b)  for an individual—$500,000 and, for a continuing offence, a further penalty of $120,000 for each day the offence continues.

Note—

An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.

s 91B: Ins 2022 No 3, Sch 5[31]. Am 2024 No 20, Sch 9[5]–[8].

(1) Directions to public authorities to take clean-up action If the EPA reasonably suspects that a pollution incident has occurred or is occurring, the EPA may, by notice in writing, direct a public authority to take such clean-up action as is specified in the notice. The public authority is authorised and required to take that action.

(2) Voluntary clean-up action by public authorities If a public authority reasonably suspects that a pollution incident has occurred or is occurring, the public authority may take such clean-up action as it considers necessary. The public authority is authorised to take that action, whether or not it is directed to take clean-up action under subsection (1).

(3) Operation of section Notices may be given, and action may be taken, under this section—

(a)  whether or not the EPA is the appropriate regulatory authority with respect to the pollution incident, and

(b)  whether or not a clean-up notice has been given under section 91, and (if such a notice has been given) whether or not the period specified in the notice under that section has ended.

(4) Taking of clean-up action A public authority may take clean-up action under this section by itself or by its employees, agents or contractors.

(5) Definition In this section—

public authority does not include a State owned corporation or the lessor of a transacted distribution system or transacted transmission system under the Electricity Network Assets (Authorised Transactions) Act 2015.

s 92: Am 2015 No 5, Sch 8.21 [2].

(1) Oral directions A regulatory authority may, instead of giving a direction under this Part by notice in writing, give the direction orally.

(2) Manner of giving oral direction A direction that can be given orally under this Part by a regulatory authority can be given orally by a person who is acting under delegated or other authority from the authority.

(3) Reduction to writing A direction given orally to a person ceases to have effect on the expiration of 72 hours from the time it was given unless confirmed by the regulatory authority who gave the direction orally by a written clean-up notice given to the person.

(4) Effect of oral direction A direction given orally has the same effect as a direction given by notice in writing, and is taken to be a clean-up notice.

s 93: Am 2001 No 56, Sch 1.14 [7].

(1)  This section applies if—

(a)  under this part, a person is required to take clean-up action, and

(b)  the carrying out of the clean-up action would, but for this section, require consent or approval under the Environmental Planning and Assessment Act 1979.

(2)  Despite the Environmental Planning and Assessment Act 1979 or an instrument made under that Act, consent or approval under that Act or instrument is not required to carry out the clean-up action.

s 93A: Ins 2024 No 20, Sch 9[17].

(1)  The purpose of this section is to enable a regulatory authority to recover the administrative costs of preparing and giving clean-up notices.

(2)  A person who is given a clean-up notice by a regulatory authority must within 30 days pay the prescribed fee to the authority.

(3)  The regulatory authority may—

(a)  extend the time for payment of the fee, on the application of a person to whom subsection (2) applies, or

(b)  waive payment of the whole or any part of the fee, on the authority’s own initiative or on the application of a person to whom subsection (2) applies.

(4)  A person who does not pay the fee within the time provided under this section is guilty of an offence.

Maximum penalty—200 penalty units.

Note—

Section 110 (5) provides that a fee is not payable for the variation of an environment protection notice under this Chapter.

s 94: Am 2005 No 96, Sch 1 [43] [44].

In this part—

recall cost notice—see section 94M(1).

recall notice—see section 94B.

supply chain participant—see section 94C(1)(c).

s 94A: Ins 2024 No 20, Sch 9[18].

The EPA may, with the approval of the Minister, issue a notice (a recall notice) if, in the EPA’s opinion, 1 or more of the following grounds apply—

(a)  either—

(i)  a substance poses a potential risk of harm to human health or the environment, or

(ii)  a particular use of, or activity involving, the substance poses a potential risk of harm to human health or the environment,

(b)  a substance—

(i)  is required by environment protection legislation or a national environment protection measure to comply with a prescribed standard or other specific requirements, and

(ii)  does not comply with the standard or other requirements,

(c)  environment protection legislation has been contravened,

(d)  another matter prescribed by the regulations.

s 94B: Ins 2024 No 20, Sch 9[18].

(1)  A recall notice must—

(a)  identify the substance the subject of the notice, and

(b)  state the reason under section 94B the recall notice has been issued, and

(c)  identify the persons or class of persons (both supply chain participants) who are subject to the recall notice, and

(d)  give information or advice about how to minimise the risk of potential harm from the substance, and

(e)  state the actions required to be taken by the supply chain participants who are subject to the recall notice, and

(f)  include any other matters prescribed by the regulations.

(2)  For subsection (1)(c), the recall notice may identify the supply chain participants in either or both of the following ways—

(a)  specifically by name,

(b)  by reference to a class of persons.

s 94C: Ins 2024 No 20, Sch 9[18].

A recall notice may apply to any supply chain participant involved in the supply chain of the substance, including a supply chain participant—

(a)  producing, generating, processing or reprocessing the substance, including processing or reprocessing the substance with other substances or by mixing the substance with other substances, or

(b)  selling, distributing, transporting, supplying, resupplying or storing the substance, or

(c)  receiving or processing the substance, whether or not to supply the substance to another person, or

(d)  making the substance available or providing the substance to another person.

s 94D: Ins 2024 No 20, Sch 9[18].

For section 94C(1)(e), a recall notice may require a supply chain participant who is subject to the notice to do any of the following—

(a)  stop supplying the substance, or a particular batch of the substance, immediately or within a specified time,

(b)  take action to recover the substance from another person and return the substance to—

(i)  the supply chain participant’s premises, or

(ii)  another specified location,

(c)  take specified action in relation to the substance, including—

(i)  sampling, testing, remediating or disposing of the substance, or

(ii)  moving the substance to a specified location,

(d)  give information and records to the EPA about—

(i)  who the supply chain participant has supplied the substance to, and

(ii)  the supply chain for the substance,

(e)  if the substance cannot be recalled from a person who has received a supply of the substance—take specified actions, including the following—

(i)  securing the substance at its current location,

(ii)  taking action or giving information to the person to prevent or minimise the likelihood of the substance causing harm to human health or the environment,

(f)  publish, in a form approved by the EPA—

(i)  warnings that the substance is being recalled on the basis of 1 or more of the grounds referred to in section 94B(a)–(d), and

(ii)  other specified particulars, including the following—

(A)  batch numbers or other identifying particulars of the substance,

(B)  information about preventing or minimising the likelihood of the substance causing harm to human health or the environment,

(C)  information about the recall of the substance,

(g)  control the movement of the substance at premises used or controlled by the supply chain participant, including the following—

(i)  isolating the substance from other substances,

(ii)  securing, or restricting or preventing access to, the substance in place,

(iii)  prohibiting the movement of the substance on the premises at which the substance is located or to other premises,

(h)  not produce the substance for a specified period,

(i)  report on compliance with the recall notice,

(j)  if the supply chain participant has received supply or resupply of the substance—not supply the substance to another person,

(k)  take the following action and provide evidence of the action taken—

(i)  action to dispose of the substance at a facility that can lawfully receive the substance,

(ii)  action to destroy the substance,

(l)  another action prescribed by the regulations.

s 94E: Ins 2024 No 20, Sch 9[18].

(1)  A recall notice must be published—

(a)  on the EPA’s website, and

(b)  if the EPA considers it necessary to publish the notice in other ways to bring the notice to the attention of members of the public generally or in a particular part of the State—in other ways the EPA is satisfied are likely to bring the notice to the attention of members of the public generally or in that part of the State.

(2)  A recall notice takes effect—

(a)  when the notice is published on the EPA’s website, or

(b)  on a later date specified in the notice.

(3)  A recall notice must also be published in the Gazette as soon as practicable after the notice is published on the EPA’s website.

s 94F: Ins 2024 No 20, Sch 9[18].

(1)  This section applies if —

(a)  a recall notice (the previous recall notice) has been issued by the EPA in relation to a supply chain participant that is a corporation, and

(b)  the corporation has not complied with the previous recall notice within the period specified in the notice.

(2)  The EPA may, by written notice (the supplementary recall notice), direct 1 or more of the following to carry out, or ensure the carrying out of, the action specified in the recall notice within the period specified in the notice—

(a)  a current director of the supply chain participant,

(b)  a former director of the supply chain participant,

(c)  a related body corporate.

(3)  The supplementary recall notice may also require the person to whom the notice is given to provide reports to the EPA about progress on the carrying out of the action specified in the notice.

(4)  If the person given a supplementary recall notice complies with the notice but was not the person who caused, or solely caused, the circumstances the subject of the recall notice, the cost, or part of the cost, of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from another person who caused or contributed to the relevant circumstances.

(5)  A reference in subsection (2) to a director of a supply chain participant that is a corporation extends to a person involved in the management of the corporation.

s 94G: Ins 2024 No 20, Sch 9[18].

(1)  This section applies if—

(a)  under this part, a person is required to take action under a recall notice, and

(b)  the carrying out of the action would, but for this section, require consent or approval under the Environmental Planning and Assessment Act 1979.

(2)  Despite the Environmental Planning and Assessment Act 1979 or an instrument made under that Act, consent or approval under that Act or instrument is not required to carry out the action under the recall notice.

s 94H: Ins 2024 No 20, Sch 9[18].

(1)  This section applies if—

(a)  a supply chain participant is given a recall notice, and

(b)  either—

(i)  the supply chain participant does not comply with the notice, or

(ii)  the EPA or a public authority otherwise considers it would be appropriate for the EPA or public authority to take action required under the recall notice.

(2)  The EPA may take action required under the recall notice if the EPA considers it appropriate to take the action.

(3)  The public authority may take action required under the recall notice if the public authority—

(a)  is directed by the EPA to take the action, or

(b)  otherwise considers it appropriate to take the action.

s 94I: Ins 2024 No 20, Sch 9[18].

(1)  A supply chain participant to whom a recall notice is given must pay the participant’s own costs of complying with the notice.

(2)  To avoid doubt, subsection (1) does not prevent the supply chain participant from recovering costs, or making another claim for damages or compensation, to which the supply chain participant may be entitled other than under this Act.

(3)  If the EPA or a public authority takes action to comply with a recall notice itself or its officers, employees or contractors take the action, the EPA or public authority may recover the relevant costs under sections 94M and 94N.

s 94J: Ins 2024 No 20, Sch 9[18].

For this part—

(a)  a decision by the Minister or EPA is not an administratively reviewable decision for the Administrative Decisions Review Act 1997, and

(b)  in proceedings for judicial review or other provisions, a court or tribunal must not make an interlocutory order that has the effect of staying the operation of a recall notice.

s 94K: Ins 2024 No 20, Sch 9[18].

A supply chain participant who is subject to a recall notice must, unless the participant has a reasonable excuse, comply with the notice.

Maximum penalty—

(a)  for a corporation—$2,000,000 and, for a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b)  for an individual—$500,000 and, for a continuing offence, a further penalty of $120,000 for each day the offence continues.

s 94L: Ins 2024 No 20, Sch 9[18].

(1)  The EPA or a public authority may, by written notice (a recall cost notice), require the supply chain participant to whom a recall notice is given to pay all or any reasonable costs and expenses incurred by the EPA or public authority in connection with—

(a)  taking action or monitoring under the recall notice, and

(b)  ensuring the notice is complied with, and

(c)  other associated matters.

(2)  If the EPA or a public authority takes action under subsection (1), the EPA or public authority may, by written notice given to the supply chain participant to whom the recall notice was given, require the participant to pay all or any reasonable costs and expenses incurred by the EPA or public authority in taking the action.

s 94M: Ins 2024 No 20, Sch 9[18].

The EPA or a public authority may recover any unpaid amounts specified in a recall cost notice as a debt in a court of competent jurisdiction.

s 94N: Ins 2024 No 20, Sch 9[18].

(1)  A person involved in the supply chain of a substance may initiate a voluntary recall of the substance if the person considers it necessary or appropriate, including if—

(a)  either—

(i)  the substance poses a potential risk of harm to human health or the environment, or

(ii)  a particular use of, or activity involving, the substance poses a potential risk of harm to human health or the environment, or

(b)  the substance—

(i)  is required by environment protection legislation or a national protection measure to comply with a prescribed standard or other specific requirements, and

(ii)  does not comply with the standard or other requirements, or

(c)  environment protection legislation has been contravened, or

(d)  another matter prescribed by a regulation under section 94B(d) applies.

(2)  If a person initiates a voluntary recall, the person must immediately give the EPA written notice of the recall.

(3)  The notice must include the following information—

(a)  that a voluntary recall is occurring,

(b)  details of the substance that is subject to the recall,

(c)  if the substance may pose a risk to human health or the environment—the circumstances in which the substance may pose the risk and the nature of the risk,

(d)  if the substance does not comply with a prescribed standard or other requirements—the nature of the non-compliance,

(e)  any information or advice for minimising any risk to human health or the environment posed by the substance,

(f)  the nature of the actions being taken by the person as part of the recall,

(g)  any other matters prescribed by the regulations.

(4)  If the EPA is given notice about a voluntary recall of a substance, the EPA must publish information about the recall on the EPA’s website.

(5)  A voluntary recall under this section does not prevent the EPA from issuing a recall notice to the person in relation to the same substance or matter.

s 94O: Ins 2024 No 20, Sch 9[18].

For the purposes of this Part an activity is carried on in an environmentally unsatisfactory manner if—

(a)  it is carried on in contravention of, or in a manner that is likely to lead to a contravention of, this Act, the regulations or a condition attached to an environment protection licence (including a condition of a surrender of a licence) or an exemption given under this Act or the regulations, or

(b)  it causes, or is likely to cause, a pollution incident, or

(c)  it is not carried on by such practicable means as may be necessary to prevent, control or minimise pollution, the emission of any noise or the generation of waste, or

(d)  it is not carried on in accordance with good environmental practice.

s 95: Am 2005 No 96, Sch 1 [45].

(1) Application of section This section applies when the appropriate regulatory authority reasonably suspects that an activity has been or is being carried on in an environmentally unsatisfactory manner at any premises or by any person (otherwise than at premises).

(2) Prevention notices The appropriate regulatory authority may, by notice in writing, do either or both of the following—

(a)  direct the occupier of the premises,

(b)  direct the person carrying on the activity (whether or not at premises),

to take such action, as is specified in the notice and within such period (if any) as is specified in the notice, to ensure that the activity is carried on in future in an environmentally satisfactory manner.

(3) Examples The action to be taken may (without limitation) include any of the following—

(a)  installing, repairing, altering, replacing, maintaining or operating control equipment or other plant,

(b)  modifying, or carrying out any work on, plant,

(c)  ceasing to use plant or altering the way plant is used,

(d)  ceasing to carry on or not commencing to carry on an activity,

(e)  carrying on an activity in a particular manner,

(f)  carrying on an activity only during particular times,

(g)  monitoring, sampling or analysing any pollution or otherwise ascertaining the nature and extent of pollution or the risk of pollution,

(h)  action with respect to the transportation, collection, reception, re-use, recovery, recycling, processing, storage or disposal of any waste or other substance,

(i)  preparing and carrying out a plan of action to control, prevent or minimise pollution or waste,

(j)  reviewing the carrying out of an activity.

(3A) Water pollution considerations The appropriate regulatory authority, when determining the action to be specified in a notice relating to an activity that causes, is likely to cause or has caused water pollution, must consider—

(a)  the environmental values of water affected by the activity, and

(b)  the practical measures that could be taken to restore or maintain those environmental values, and

(c)  if the appropriate regulatory authority is not the EPA—any guidelines issued by the EPA to the authority relating to the exercise of functions under this section.

(4) Occupier’s duty If the occupier who is given a notice is not the person carrying on the activity, the notice is taken to require the occupier to take all available steps to cause the action to be taken.

(5) Reports A prevention notice may require the person to whom the notice is given to furnish reports to the appropriate regulatory authority regarding progress on carrying out the action required to be taken by the notice.

s 96: Am 1999 No 80, Sch 3.6 [1]; 2001 No 56, Sch 1.14 [8]; 2005 No 96, Sch 1 [46]–[48].

(1)  This section applies if —

(a)  the appropriate regulatory authority has given a prevention notice under section 96 (the previous prevention notice) to a corporation in relation to an activity, and

(b)  the corporation has not complied with the previous prevention notice within the period specified in the notice.

(2)  The appropriate regulatory authority may, by written notice (the supplementary prevention notice), direct 1 or more of the following to take the action specified in the notice within the period, if any, specified in the notice to ensure that the activity is carried on in future in an environmentally satisfactory manner—

(a)  a current director of the corporation,

(b)  a former director of the corporation,

(c)  a related body corporate.

(3)  Without limiting subsection (2), the action to be taken may include any of the actions specified in section 96(3).

(4)  When determining the action to be specified in the supplementary prevention notice, the appropriate regulatory authority must consider the matters specified in section 96(3A).

(5)  The supplementary prevention notice may require the person to whom the notice is given to provide reports to the appropriate regulatory authority about progress on the carrying out of the clean-up action.

(6)  A reference in subsection (2) to a director of a corporation extends to a person involved in the management of the affairs of the corporation.

s 96A: Ins 2022 No 3, Sch 5[32].

A person who does not comply with a prevention notice given to the person is guilty of an offence.

Maximum penalty—

(a)  in the case of a corporation—$2,000,000 and, in the case of a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b)  in the case of an individual—$500,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues.

Note—

An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.

s 97: Am 2005 No 96, Sch 1 [49]; 2012 No 97, Sch 1.34 [8]; 2024 No 20, Sch 9[5]–[8].

If a person does not comply with a prevention notice given to the person, the appropriate regulatory authority may take action to cause the notice to be complied with by itself or by its employees, agents or contractors.

(1)  A prevention notice, or a variation of a prevention notice, operates from the day the notice or notice of the variation is given or from such later day as the notice specifies.

(2)  If an appeal is made against a prevention notice or the variation of a prevention notice and the Land and Environment Court directs that the notice is stayed, the notice or variation does not operate until the stay ceases to have effect or the Land and Environment Court confirms the notice or the appeal is withdrawn, whichever first occurs.

s 99: Subst 1999 No 31, Sch 1.37 [6]; 2005 No 96, Sch 1 [50].

(1)  The purpose of this section is to enable a regulatory authority to recover the administrative costs of preparing and giving prevention notices.

(2)  A person who is given a prevention notice by a regulatory authority must within 30 days pay the prescribed fee to the authority.

(3)  The regulatory authority may—

(a)  extend the time for payment of the fee, on the application of a person to whom subsection (2) applies, or

(b)  waive payment of the whole or any part of the fee, on the authority’s own initiative or on the application of a person to whom subsection (2) applies.

(4)  The fee is not payable during the currency of an appeal against the prevention notice.

(5)  If the decision of the Court on an appeal does not invalidate the prevention notice, the fee is payable within 30 days of the decision.

(6)  A person who does not pay the fee within the time provided under this section is guilty of an offence.

Maximum penalty—200 penalty units.

Note—

Section 110 (5) provides that a fee is not payable for the variation of an environment protection notice under this Chapter.

s 100: Am 2005 No 96, Sch 1 [51] [52].

(1) Application of section This section applies if the EPA recommends to the Minister that a notice be given under this section because, in the EPA’s opinion, the emission or discharge of pollutants from or within a premises, or class of premises, in which an activity is carried on—

(a)  is causing or is likely to cause such harm to the environment, or

(b)  is or is likely to be so injurious to public health, or

(c)  is causing or is likely to cause such discomfort or inconvenience to any persons not associated with the management or operation of the activity,

that the giving of the notice is warranted.

(2) Notice The Minister may, by written notice, direct, for the period, if any, specified in the notice—

(a)  the occupier of the premises, or occupiers of a class of premises, to cease carrying on the activity, or a specified aspect of the activity, at the premises or at premises of the class of premises, or

(b)  direct the person, or persons of a class of persons, carrying on the activity to cease carrying on the activity, or a specified aspect of the activity, at any premises.

(3) Occupier’s duty If the occupier who is given a notice is not the person carrying on the activity, the notice is taken to require the occupier to take all available steps to cause the activity to cease.

(4) Further notice The Minister may give further notices on the expiry of the period of the earlier notice if the EPA recommends in accordance with this section that the further notices be given.

s 101: Am 2022 No 3, Sch 5[33] [34].

(1)  This section applies if —

(a)  the Minister has given a prohibition notice under section 101 to a corporation, and

(b)  the corporation has not complied with the prohibition notice.

(2)  If the EPA remains satisfied of the matters stated in section 101(1), the EPA may recommend to the Minister that a notice be given under this section to any of the following persons—

(a)  a current director of the corporation,

(b)  a former director of the corporation,

(c)  a related body corporate.

(3)  On the EPA’s recommendation, the Minister may, by written notice, direct the current or former director, or the related body corporate, to do 1 or more of the following—

(a)  cease carrying on the activity, or a specified aspect of the activity, for the period, if any, specified in the notice,

(b)  take all available steps to end the carrying on of the activity, or a specified aspect of the activity, for the period, if any, specified in the notice.

(4)  A reference in subsection (2) to a director of a corporation extends to a person involved in the management of the affairs of the corporation.

s 101A: Ins 2022 No 3, Sch 5[35].

A person who, without reasonable excuse, does not comply with a prohibition notice given to the person is guilty of an offence.

Maximum penalty—

(a)  in the case of a corporation—$2,000,000 and, in the case of a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b)  in the case of an individual—$500,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues.

Note—

An offence against this section committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.

s 102: Am 2005 No 96, Sch 1 [53]; 2012 No 97, Sch 1.34 [9]; 2024 No 20, Sch 9[5]–[8].

If a person does not comply with a prohibition notice given to the person, the EPA may take action to cause the notice to be complied with by itself or by its employees, agents or contractors.

(1) Clean-up notice—monitoring or compliance costs The appropriate regulatory authority that gives a clean-up notice to a person may, by notice in writing, require the person to pay all or any reasonable costs and expenses incurred by the authority in connection with—

(a)  monitoring action under the notice, and

(b)  ensuring that the notice is complied with, and

(c)  any other associated matters.

(2) Clean-up by public authority A public authority that takes clean-up action under section 92 may, by written notice, require 1 or more of the following persons to pay all or part of the reasonable costs and expenses incurred by the public authority in connection with the clean-up action—

(a)  the occupier of the premises at or from which the authority reasonably suspects the pollution incident occurred,

(b)  a person who is reasonably suspected by the authority of having caused or contributed to the pollution incident.

(3) Prevention notice—monitoring or compliance costs The appropriate regulatory authority that gives a prevention notice to a person may, by notice in writing, require the person to pay all or any reasonable costs and expenses incurred by the authority in connection with—

(a)  monitoring action under the notice, and

(b)  ensuring that the notice is complied with, and

(c)  any other associated matters.

(4) Prevention notice or prohibition notice—non-compliance A regulatory authority that takes action under section 98 because a prevention notice is not complied with or takes action under section 103 because a prohibition notice is not complied with may, by notice in writing, require the person to whom the notice was given to pay all or any reasonable costs and expenses incurred by it in taking the action.

Note—

See also section 608 of the Local Government Act 1993 for charges for inspection of premises by a local council in the exercise of its functions as a regulatory authority.

s 104: Am 2009 No 56, Sch 1.32 [1]; 2022 No 3, Sch 5[36] [37].

(1) Recovery of unpaid amounts A regulatory authority or public authority may recover any unpaid amounts specified in a compliance cost notice as a debt in a court of competent jurisdiction.

(2) Recovery by person given notice If the person given a compliance cost notice complies with the notice but was not the person who caused or contributed to the pollution or pollution incident, the cost of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from the person who caused or contributed to the pollution or pollution incident.

s 105: Am 2023 No 30, Sch 2.5[2].

(1)  If a compliance cost notice has been given by a regulatory authority or a public authority to a person, the authority may apply to the Registrar-General for registration of the notice in relation to any land owned by the person.

(2)  An application under this section must define the land to which it relates.

(3)  The Registrar-General must, on application under this section and lodgment of a copy of the compliance cost notice, register the notice in relation to the land in such manner as the Registrar-General thinks fit.

(4)  If the notice relates to land under the provisions of the Real Property Act 1900, the notice is to be registered under that Act.

(1) Application of section This section applies where a compliance cost notice is registered under section 106, on the application of a regulatory authority or public authority, in relation to particular land owned by a person.

(2) Creation of charge There is created by force of this section, on the registration of the notice, a charge on the land in relation to which the notice is registered to secure the payment to the regulatory authority or public authority of the amount specified in the notice.

(3) When charge ceases to have effect Such a charge ceases to have effect in relation to the land—

(a)  on payment to the regulatory authority or public authority of the amount concerned, or

(b)  on the sale or other disposition of the property with the written consent of the authority, or

(c)  on the sale of the land to a purchaser in good faith for value who, at the time of the sale, has no notice of the charge,

whichever first occurs.

(4) Charge is subject to existing charges and encumbrances Such a charge is subject to every charge or encumbrance to which the land was subject immediately before the notice was registered.

(5) Charge not affected by change of ownership Such a charge is not affected by any change of ownership of the land, except as provided by subsection (3).

(6) Registration of charge is notice If—

(a)  such a charge is created on land of a particular kind and the provisions of any law of the State provide for the registration of title to, or charges over, land of that kind, and

(b)  the charge is so registered,

a person who purchases or otherwise acquires the land after the registration of the charge is, for the purposes of subsection (3), taken to have notice of the charge.

(7) Removal of charge The regulations may make provision for or with respect to the removal of a charge under this section.

(8) Recovery of costs relating to charge A regulatory authority or public authority that lodges or registers a compliance cost notice under section 106 may, by notice in writing, require the person to whom the compliance cost notice was given to pay all or any of the reasonable costs and expenses incurred by the authority in respect of the lodgment or registration of the compliance cost notice and the registration of any resulting charge (including the costs of discharging the charge). The regulatory authority or public authority may recover any unpaid amounts specified in the notice as a debt in a court of competent jurisdiction.

s 107: Am 2005 No 96, Sch 1 [54].

More than one notice under a provision of this Chapter may be given to the same person.

(1)  A single notice under this chapter may be given by the EPA to a person in relation to—

(a)  pollution incidents that relate to—

(i)  multiple premises in the same or different local government areas, or

(ii)  the whole of the State or a part of the State, or

(b)  matters involving the transport, storage, supply, processing, reprocessing or disposal of a substance or waste across—

(i)  multiple premises in the same or different local government areas, or

(ii)  the whole of the State or a part of the State.

(2)  For subsection (1)(a), pollution incidents that relate to multiple premises, or the whole of the State or a part of the State, may be treated as 1 pollution incident.

(3)  To avoid doubt, the EPA may issue a notice under subsection (1) even if the EPA is not the appropriate regulatory authority for all the areas, premises, activities or matters—

(a)  to which the pollution incidents relate, or

(b)  involved in the transport, storage, supply, processing, reprocessing or disposal of the substance or waste.

s 108A: Ins 2024 No 20, Sch 9[19].

A notice may be given under this Chapter to a person in respect of a matter or thing even though the person is outside the State or the matter or thing occurs or is located outside the State, so long as the matter or thing affects the environment of this State.

A notice under this chapter, including the variation of a notice under section 110, may be given to a person in relation to an activity, matter, thing or premises even though the activity, matter, thing or premises are also the subject of proceedings for an offence.

s 109A: Ins 1999 No 31, Sch 1.37 [7]. Rep 2002 No 14, Sch 2 [5]. Ins 2024 No 20, Sch 9[20].

(1)  A notice given under this Chapter may be revoked or varied by a subsequent notice or notices.

(2)  A notice may be varied by—

(a)  including a new term or specification in the notice, or

(b)  substituting, omitting or amending a term or specification in the notice.

(3)  Without limiting the above, a notice may be varied by extending the time for complying with the notice.

(4)  A notice may only be revoked or varied by the Minister or by the regulatory authority or public authority that gave it.

(5)  A fee is not payable for the variation of an environment protection notice under this Chapter.

s 110: Am 2005 No 96, Sch 1 [55]; 2006 No 58, Sch 1.24 [1]; 2024 No 20, Sch 9[21].

(1)  A regulatory authority or public authority may, by its employees, agents or contractors, enter any premises at any reasonable time for the purpose of exercising its functions under this Chapter.

(2)  For the purpose of entering or leaving any such premises, the power conferred by this section extends to entering other premises.

(3)  A power to enter premises conferred by this section authorises entry by foot or by means of a motor vehicle or other vehicle, or in any other manner.

(4)  Entry may be effected under this section by an authority with the aid of such authorised officers or police officers as the authority considers necessary and with the use of reasonable force.

A person who wilfully delays or obstructs—

(a)  a person who is carrying out any action in compliance with a notice under this chapter, or another person authorised by the person to carry it out, or

(b)  a public authority that is taking action under Part 4.2 or 4.2A, or another person authorised by the authority to carry it out, or

(c)  a regulatory authority that is taking action under Part 4.1A or 4.2A or section 98 or 103, or another person authorised by the authority to take the action,

is guilty of an offence.

Maximum penalty—

(a)  in the case of a corporation—$2,000,000 and, in the case of a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b)  in the case of an individual—$500,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues.

Note—

An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.

s 112: Am 2005 No 96, Sch 1 [56]; 2012 No 97, Sch 1.34 [10]; 2024 No 20, Sch 9[5]–[8] [22]–[24].

A person who in a test, environmental monitoring or a report required under this Chapter and lodged with a regulatory authority makes a statement that the person knows is false or misleading in a material particular is guilty of an offence.

Maximum penalty—

(a)  in the case of a corporation—$2,000,000, or

(b)  in the case of an individual—$500,000 or imprisonment for 18 months, or both.

Note—

An offence against this section committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.

s 113: Am 2005 No 96, Sch 1 [57]; 2012 No 97, Sch 1.34 [11]; 2022 No 3, Sch 5[38]; 2024 No 20, Sch 9[5] [7] [25] [26].

(1)  Tier 1 offences are the offences under Part 5.2.

(2)  Tier 2 offences are all other offences under this Act or the regulations.

(3)  Tier 3 offences are tier 2 offences that may be dealt with under Part 8.2 by way of penalty notice.

(1) Offence If a person wilfully or negligently disposes of waste in a manner that harms or is likely to harm the environment—

(a)  the person, and

(b)  if the person is not the owner of the waste, the owner,

are each guilty of an offence.

Note—

An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.

(2) Defence—lawful authority It is a defence in any proceedings against a person for an offence under this section if the person establishes that the waste was disposed of with lawful authority.

(3) Definitions In this section—

dispose of waste includes to dump, abandon, deposit, discard, reject, discharge or emit anything that constitutes waste, and also includes to cause or permit the disposal of waste.

owner of waste includes, in relation to waste that has been disposed of, the person who was the owner of the waste immediately before it was disposed of.

s 115: Am 2005 No 96, Sch 1 [58]; 2012 No 97, Sch 1.34 [12].

(1)  If a person wilfully or negligently causes any substance to leak, spill or otherwise escape (whether or not from a container) in a manner that harms or is likely to harm the environment—

(a)  the person, and

(b)  if the person is not the owner of the substance, the owner,

are each guilty of an offence.

(2)  If—

(a)  the person in possession of the substance at the time of the leak, spill or other escape, or

(b)  the owner of any container from which the substance leaked, spilled or escaped, or

(c)  the owner of the land on which the substance or any such container was located at the time of the leak, spill or other escape, or

(d)  the occupier of the land on which the substance or any such container was located at the time of the leak, spill or other escape,

wilfully or negligently, in a material respect, caused or contributed to the conditions that gave rise to the commission of the offence under subsection (1), that person, owner or occupier is guilty of an offence.

(3)  A person may be proceeded against and convicted of an offence under subsection (2) whether or not a person has been proceeded against or convicted of an offence under subsection (1) in respect of the leak, spill or other escape.

(4)  It is a defence in any proceedings against a person for an offence under this section if the person establishes that the leak, spill or other escape was caused with lawful authority.

(5)  In this section—

container includes anything used for the purpose of storing, transporting or handling the substance concerned.

owner of a substance includes, in relation to a substance that has leaked, spilled or otherwise escaped, the person who was the owner of the substance immediately before it leaked, spilled or otherwise escaped.

Note—

An offence against subsection (1) or (2) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.

s 116: Am 2012 No 97, Sch 1.34 [13].

(1)  If a person wilfully or negligently causes any controlled substance (within the meaning of the Ozone Protection Act 1989) to be emitted into the atmosphere in contravention of the regulations under that Act and in a manner that harms or is likely to harm the environment—

(a)  the person, and

(b)  if the person is not the owner of the substance, the owner,

are each guilty of an offence.

Note—

An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.

(2)  In this section—

owner of a substance includes, in relation to a substance that has been emitted into the atmosphere, the person who was the owner of the substance immediately before it was emitted.

s 117: Am 2012 No 97, Sch 1.34 [14].

It is a defence in any proceedings against a person for an offence under this Part if the person establishes—

(a)  that the commission of the offence was due to causes over which the person had no control, and

(b)  that the person took reasonable precautions and exercised due diligence to prevent the commission of the offence.

A person who is guilty of an offence under this Part is liable, on conviction—

(a)  in the case of a corporation—to a penalty not exceeding $10,000,000 for an offence that is committed wilfully or $4,000,000 for an offence that is committed negligently, or

(b)  in the case of an individual—to a penalty not exceeding $2,000,000 or 7 years’ imprisonment, or both, for an offence that is committed wilfully or $1,000,000 or 4 years’ imprisonment, or both, for an offence that is committed negligently.

s 119: Subst 2005 No 96, Sch 1 [59]. Am 2024 No 20, Sch 9[10] [27]–[29].

(1)  A person who pollutes any waters is guilty of an offence.

Note—

An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.

(2)  In this section—

pollute waters includes cause or permit any waters to be polluted.

s 120: Subst 2002 No 14, Sch 2 [6]. Am 2012 No 97, Sch 1.34 [15].

(1)  The regulations may, for the purposes of this Part, regulate the carrying out of an activity that pollutes waters.

(2)  It is a defence in proceedings against a person for an offence against this Part if the person establishes that—

(a)  the pollution resulted from an activity regulated by such a regulation, and

(b)  the requirements of that regulation were not contravened.

(1)  It is a defence in proceedings against a person for an offence under this Part if the person establishes that—

(a)  the pollution was regulated by an environment protection licence held by the person or another person, and

(b)  the conditions to which that licence was subject relating to the pollution of waters were not contravened.

(2)  It is a defence in proceedings against a person for an offence under this Part if the person establishes that the act constituting the offence was—

(a)  the carrying out of a forestry operation in a State forest or other Crown-timber land to which an integrated forestry operations approval under Part 5B of the Forestry Act 2012 applies, being a forestry operation that was carried out in accordance with the approval, or

(b)  the carrying out of a forestry operation that was authorised by a private native forestry plan and that was carried out in accordance with the plan and the applicable private native forestry code of practice.

s 122: Am 2018 No 40, Sch 3.11 [1].

A person who is guilty of an offence under this Part is liable, on conviction—

(a)  in the case of a corporation—to a penalty not exceeding $2,000,000 and, in the case of a continuing offence, to a further penalty not exceeding $240,000 for each day the offence continues, or

(b)  in the case of an individual—to a penalty not exceeding $500,000 and, in the case of a continuing offence, to a further penalty not exceeding $120,000 for each day the offence continues.

s 123: Subst 2005 No 96, Sch 1 [60]. Am 2024 No 20, Sch 9[5]–[8].

(1)  A person who, whether on the person’s own behalf or on behalf of another person, sells any article of a class prescribed by the regulations for the purposes of this section is guilty of an offence if, when in use or operation, the article emits noise that, when measured at any point specified in or determined in accordance with the regulations, is in excess of the prescribed level.

(2)  The articles that may be prescribed for the purposes of this section extend to plant, motor or other vehicles, vessels or other things of any description.

(1)  A person who, whether on the person’s own behalf or on behalf of another person, sells any article of a class prescribed by the regulations for the purposes of this subsection is guilty of an offence if the article is not fitted in the prescribed manner with noise control equipment of a prescribed class.

(2)  A person who, whether on the person’s own behalf or on behalf of another person, sells any article of a class prescribed by the regulations for the purposes of this subsection is guilty of an offence if the noise control equipment with which it is fitted has not been maintained in accordance with the regulations.

(3)  It is a defence to a prosecution for an offence against subsection (2) if the defendant proves that the defendant took all reasonable steps to ensure that the equipment was maintained as required by the regulations.

(4)  The articles that may be prescribed for the purposes of this section extend to plant, motor or other vehicles, vessels or other things of any description.

It is a defence in any proceedings against a person for an offence under section 136 or 137 if the person establishes—

(a)  that the offence was committed by the person in the course of the person’s employment by another person, or

(b)  that on, or in the event of, the sale of the article to which the offence relates, the person received or was to be paid remuneration, by way of commission, from a person other than the owner of the article.

The occupier of any premises who operates any plant (other than control equipment) at those premises in such a manner as to cause the emission of noise from those premises is guilty of an offence if the noise so caused, or any part of it, is caused by the occupier’s failure—

(a)  to maintain the plant in an efficient condition, or

(b)  to operate the plant in a proper and efficient manner.

(1)  The occupier of any premises who deals with materials in or on premises in such a manner as to cause the emission of noise from those premises is guilty of an offence if the noise so caused, or any part of it, is caused by the occupier’s failure to deal with those materials in a proper and efficient manner.

(2)  In this section—

deal with materials means process, handle, move, store or dispose of the materials.

materials includes raw materials, materials in the process of manufacture, manufactured materials, by-products, or waste materials.

A person who is guilty of an offence under this Part is liable, on conviction—

(a)  in the case of a corporation—to a penalty not exceeding $2,000,000 and, in the case of a continuing offence, to a further penalty not exceeding $240,000 for each day the offence continues, or

(b)  in the case of an individual—to a penalty not exceeding $500,000 and, in the case of a continuing offence, to a further penalty not exceeding $120,000 for each day the offence continues.

Note—

An offence against section 136, 137, 139 or 140 committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.

s 141: Subst 2005 No 96, Sch 1 [63]. Am 2012 No 97, Sch 1.34 [17]; 2024 No 20, Sch 9[5]–[8].

In this part—

authorised officer means the following—

(a)  an authorised officer under this Act,

(b)  a police officer,

(c)  an authorised officer under the National Parks and Wildlife Act 1974,

(d)  an authorised officer under the Forestry Act 2012,

(e)  an authorised officer under the Crown Land Management Act 2016,

(f)  an authorised officer under the Greater Sydney Parklands Trust Act 2022,

(g)  an authorised person under regulations made under the Royal Botanic Gardens and Domain Trust Act 1980.

depositing litter has the same meaning as in Part 5.6A.

illegal dumping offence—see section 144AE(2).

litter has the same meaning as in Part 5.6A.

open private place has the same meaning as in Part 5.6A.

sensitive place means the following—

(a)  land acquired or reserved under the National Parks and Wildlife Act 1974, including land acquired under Part 11 of that Act that is yet to be reserved,

(b)  a State forest or flora reserve within the meaning of the Forestry Act 2012,

(c)  land that is a park within the meaning of the Local Government Act 1993,

(d)  a beach within the meaning of the Coastal Management Act 2016,

(e)  waters,

(f)  the grounds of a childcare centre, hospital or school to the extent the grounds are a public place or private open space,

(g)  another place prescribed by the regulations.

s 144AD: Ins 2024 No 20, Sch 9[40].

(1)  This section applies if a person, without lawful excuse—

(a)  deposits litter or waste in an amount of more than 50L or 50kg in or on—

(i)  a public place, or

(ii)  an open private place, or

(b)  causes or permits conduct referred to in paragraph (a).

(2)  The person commits an offence (an illegal dumping offence).

Maximum penalty—

(a)  for a corporation—

(i)  for an offence committed in or on a sensitive place—$100,000, or

(ii)  otherwise—$50,000, or

(b)  for an individual—

(i)  for an offence committed in or on a sensitive place—$50,000, or

(ii)  otherwise—$25,000.

(3)  If a court is satisfied a person charged with an illegal dumping offence in relation to depositing litter is not guilty of that offence but is satisfied on the evidence the person is guilty of an offence under section 145—

(a)  the court may find the person guilty of the offence under section 145, and

(b)  the person is liable to punishment under that section.

s 144AE: Ins 2024 No 20, Sch 9[40].

(1)  Section 144AE does not apply to a person who deposited the litter or waste in or on a public place if the person—

(a)  deposited the litter or waste in or on the place—

(i)  in a receptacle provided by the custodian of the place for the depositing of litter or waste, and

(ii)  in accordance with any conditions specified by the custodian, by a notice displayed on or near the receptacle, in relation to the depositing of litter or waste in the receptacle, or

(b)  placed a receptacle containing the litter or waste in the place for the purpose of the litter or waste being removed during a litter or waste removal service provided by the custodian of the place, or

(c)  deposited the litter or waste in the place—

(i)  in response to an invitation contained in a notice published by the custodian of the place, and

(ii)  in accordance with any conditions specified in the notice in relation to the depositing of litter or waste in the place, or

(d)  deposited the litter or waste in the place with the express consent of the custodian of the place.

(2)  Section 144AE does not apply to a person who deposited the litter or waste in or on an open private place if the person—

(a)  deposited the litter or waste in or on the place in any receptacle that is—

(i)  provided for the depositing of litter or waste, and

(ii)  appropriate for litter or waste of that size, shape, nature or volume, or

(b)  at the relevant time was the custodian of the place or was acting with the express or implied consent of the custodian of the place.

(3)  Section 144AE does not apply to a person who deposited the litter or waste in or on a place if the person—

(a)  deposited the litter or waste in the place under an authority conferred by or under this Act or another Act or a Commonwealth Act, or

(b)  deposited the litter or waste in accordance with regulations made for the purposes of this section or in circumstances prescribed by regulations made for the purposes of this section.

s 144AF: Ins 2024 No 20, Sch 9[40].

(1)  Chapter 4, Part 4.2 applies to the depositing of litter or waste referred to in section 144AE(1) or the depositing of litter under Part 5.6A as if the depositing of the litter or waste were a pollution incident.

(2)  For subsection (1), Chapter 4, Part 4.2 applies—

(a)  as if a reference to premises at or from which a pollution incident has occurred or is occurring, or is suspected to have occurred or is occurring, were a reference to premises on which litter or waste has been deposited as referred to in section 144AE(1), and

(b)  as if the maximum penalty in section 91B for a corporation were $50,000 and, for a continuing offence, a further penalty of $6,000 for each day the offence continues, and

(c)  as if the maximum penalty in section 91B for an individual were $25,000 and, for a continuing offence, a further penalty of $6,000 for each day the offence continues, and

(d)  with any other modifications prescribed by the regulations.

s 144AG: Ins 2024 No 20, Sch 9[40].

(1)  This section applies if an authorised officer believes on reasonable grounds that litter or waste has been deposited in a public place by a person in contravention of this Act.

(2)  The authorised officer may give the following persons a verbal direction to remove the litter or waste from the public place—

(a)  the person who deposited the litter or waste,

(b)  the person who caused or permitted the depositing of the litter or waste.

(3)  The person must comply with the direction.

Maximum penalty—

(a)  if the amount of litter or waste is no more than 50kg or 50L—

(i)  for a corporation—$10,000, or

(ii)  for an individual—$5,000, or

(b)  if the amount of litter or waste is more than 50kg or 50L—

(i)  for a corporation—$20,000, or

(ii)  for an individual—$10,000.

s 144AH: Ins 2024 No 20, Sch 9[40].

In this Part—

advertising material means any paper product (including a leaflet, brochure or magazine), or other material thing, that contains advertising or promotional matter.

custodian of a place or vehicle means the person who owns the place or vehicle or who has the care, control or management of the place or vehicle.

depositing litter in or on a place includes—

(a)  dropping or throwing litter in, on, into or onto the place, or

(b)  leaving litter in or on the place, or

(c)  putting litter in such a location that it falls, descends, blows, is washed, percolates or otherwise escapes or is likely to fall, descend, blow, be washed, percolate or otherwise escape into or onto the place, or

(d)  causing, permitting or allowing litter to fall, descend, blow, be washed, percolate or otherwise escape into or onto the place.

litter includes—

(a)  any solid or liquid domestic or commercial refuse, debris or rubbish and, without limiting the generality of the above, includes any glass, metal, cigarette butts, paper, fabric, wood, food, abandoned vehicles, abandoned vehicle parts, construction or demolition material, garden remnants and clippings, soil, sand or rocks, and

(b)  any other material, substance or thing deposited in or on a place if its size, shape, nature or volume makes the place where it is deposited disorderly or detrimentally affects the proper use of that place,

deposited in or on a place, whether or not it has any value when or after being deposited in or on the place.

open private place means—

(a)  a private place that is situated in or on land and that is not within a building on the land, or

(b)  a private place that is situated in or on waters.

vehicle means—

(a)  any thing that is capable of transporting a person, including an aeroplane, vessel, bicycle, bus, car, horse, train or tram, or

(b)  any trailer that is attached to any such thing,

and includes a motor vehicle.

s 144A: Ins 2000 No 20, Sch 1 [6].

(1) Offence of littering A person who deposits litter in or on a public place or an open private place is guilty of an offence.

Maximum penalty—

(a)  for a corporation—$10,000, or

(b)  for an individual—$5,000.

(2) Application of this section This section applies whether the place is in or on land or is in or on waters, but (without limiting subsection (5) (b)) does not apply to a place or class of places prescribed by the regulations as being excluded from this section.

(3) Exceptions: public places Subsection (1) does not apply to a person who deposited the litter in or on a public place, if the person—

(a)  deposited the litter in or on the place—

(i)  in a receptacle provided by the custodian of the place for the depositing of litter, and

(ii)  in accordance with any conditions specified by the custodian, by means of a notice displayed on or in the vicinity of the receptacle, in relation to the depositing of litter in the receptacle, or

(b)  placed a receptacle containing the litter in the place for the purpose of the litter being removed in the course of a litter removal service provided by the custodian of the place, or

(c)  deposited the litter in the place—

(i)  in response to an invitation contained in a notice published by the custodian of the place, and

(ii)  in accordance with any conditions specified in the notice in relation to the depositing of litter in that place, or

(d)  deposited the litter in the place with the express consent of the custodian of the place.

(4) Exceptions: open private places Subsection (1) does not apply to a person who deposited the litter in or on an open private place, if the person—

(a)  deposited the litter in or on the place in any receptacle—

(i)  that is provided for the deposit of litter, and

(ii)  that is appropriate for litter of that size, shape, nature or volume, or

(b)  at the relevant time was the custodian of the place or was acting with the express or implied consent of the custodian of the place.

(5) Exceptions: generally Subsection (1) does not apply to a person who deposited the litter in or on a place, if the person—

(a)  deposited the litter in the place under an authority conferred by or under this or any other Act or any Commonwealth Act, or

(b)  deposited the litter in accordance with any regulations made for the purposes of this section or in such circumstances as may be prescribed by any regulations made for the purposes of this section.

s 145: Subst 2000 No 20, Sch 1 [7]. Am 2005 No 96, Sch 1 [71]; 2024 No 20, Sch 9[41].

(1)  A person who deposits litter that is or includes dangerous material in or on either of the following places commits an offence—

(a)  a public place,

(b)  an open private place.

Maximum penalty—

(a)  for a corporation—$50,000, or

(b)  for an individual—$25,000.

(2)  If a court is satisfied a person charged with an offence under this section is not guilty of the offence but is satisfied on the evidence the person is guilty of an offence under section 145, the court may—

(a)  find the person guilty of the offence under section 145, and

(b)  impose a penalty on the person under that section.

(3)  In this section—

dangerous material means the following—

(a)  a lit cigarette or a lit cigarette butt,

(b)  an e-cigarette,

(c)  a lithium battery or an item that contains a lithium battery,

(d)  a syringe,

(e)  glass,

(f)  oil, fuel, grease, paint or solvent,

(g)  a substance, material or other thing prescribed by the regulations.

syringe—

(a)  means a hypodermic syringe, and

(b)  includes—

(i)  anything designed for use, or intended to be used, as part of a hypodermic syringe, and

(ii)  a needle designed for use, or intended to be used, in connection with a hypodermic syringe.

s 145A: Ins 2000 No 20, Sch 1 [7]. Subst 2024 No 20, Sch 9[42].

(1) Offence If litter is deposited from a motor vehicle, or from a trailer attached to a motor vehicle, contrary to section 145 or 145A, the following are taken to be guilty of an offence under that section—

(a)  in the case of litter deposited from a motor vehicle—the driver of the motor vehicle,

(b)  in the case of litter deposited from a motor vehicle—the owner of the motor vehicle,

(c)  in the case of litter deposited from a trailer attached to a motor vehicle—the owner of the trailer.

(2) Only one person liable Subsection (1) does not affect the liability of the actual offender but, if a penalty has been imposed or recovered from any person in relation to the offence (whether the actual offender, the driver or the owner), no further penalty may be imposed on or recovered from any other person. In this subsection, penalty includes a penalty under a penalty notice.

(3) Exception for passenger vehicles Subsection (1) does not apply if—

(a)  the motor vehicle is a bus, taxi or other public transport vehicle and is being used at the time to convey a public passenger, and

(b)  the litter was deposited by that passenger.

(4) Exception for stolen vehicles Subsection (1) (b) does not apply if the motor vehicle was at the time a stolen motor vehicle or a motor vehicle illegally taken or used.

(4A) Exception for stolen trailers Subsection (1) (c) does not apply if the trailer was at the time a stolen trailer or a trailer illegally taken or used.

(5) Exception for owner when not driver Subsection (1) (b) or (c) does not apply if the owner was not in the motor vehicle, including the motor vehicle to which the trailer was attached, at the relevant time and—

(a)  gives notice in accordance with subsection (7) of the name and address of the person who was in charge of the motor vehicle at the relevant time, or

(b)  satisfies the officer who gave the penalty notice for the offence or the court dealing with the offence (as the case requires) that the owner did not know, and could not with reasonable diligence have ascertained, that name and address.

A notice under this subsection is, in proceedings against the person named in the notice for an offence under this Part, evidence that the person was driving the motor vehicle at the relevant time.

(6) Exception for driver when not offender Subsection (1) (a) does not apply if the driver—

(a)  gives notice in accordance with subsection (7) of the name and address of the passenger in the motor vehicle who deposited the litter, or

(b)  satisfies the officer who gave the penalty notice for the offence or the court dealing with the offence (as the case requires) that the driver did not deposit the litter and did not know, and could not with reasonable diligence have ascertained, the name and address of the passenger who deposited the litter.

A notice under this subsection is, in proceedings against the person named in the notice for an offence under this Part, evidence that the person deposited the litter from the motor vehicle.

(7) Notice given by owner or driver A notice for the purposes of subsection (5) or (6) must be in the form of an approved nomination notice and—

(a)  if a penalty notice has been given for the offence—the notice must be given to an officer specified in the penalty notice for the purpose within 21 days after service of the penalty notice, or

(b)  if a court is dealing with the offence—the notice must be given to the prosecutor within 21 days after service of the summons or court attendance notice for the offence.

(7A)  Despite any other provision of this Act, an approved nomination notice may be provided by a person served with a penalty notice within 90 days of the notice being served on the person if the approved nomination notice is provided in the circumstances specified in section 23AA or 23AB of the Fines Act 1996.

(7B)  If the owner or driver of a vehicle supplies an approved nomination notice to an officer or a prosecutor for the purposes of this section, an officer or prosecutor may, by written notice served on the owner or driver, require the owner to supply a statutory declaration for use in court proceedings that verifies the nomination contained in the approved nomination notice.

(8) False statements A person who makes a statement for the purposes of subsection (5) or (6) knowing that it is false is guilty of an offence.

Maximum penalty—10 penalty units.

(9) Definition In this section—

approved nomination notice has the same meaning as in section 38 of the Fines Act 1996.

s 146: Am 2000 No 20, Sch 1 [8]; 2000 No 93, Sch 1.18 [1]–[5]; 2005 No 96, Sch 1 [72]; 2016 No 13, Sch 2.8 [1]–[4].

(1) Offence A person must not deposit any advertising material in or on any place, other than—

(a)  in a receptacle that is provided for the deposit of mail, or

(b)  in a receptacle that is provided for the deposit of newspapers, or

(c)  under the door of any premises.

Maximum penalty—5 penalty units.

(2) Application of this section This section applies whether the place is a public place or a private place, and whether the place is in or on land or is in or on waters, but does not apply to the deposit of any advertising material in or on a vehicle.

(3) Exceptions This section does not apply to the deposit of—

(a)  any newspaper, or any material folded or inserted in a newspaper, or

(b)  anything that is of such a size, shape or volume that it is not possible or appropriate for it to be deposited in accordance with subsection (1) (a)–(c), or

(c)  anything in a place by a person who is the custodian of the place or is acting with the express consent of the custodian of the place, or

(d)  anything by a person who deposits it in accordance with any regulations made for the purposes of this section or in such circumstances as may be prescribed by any regulations made for the purposes of this section.

ss 146A–146C: Ins 2000 No 20, Sch 1 [9].

(1) Offence A person must not deposit any advertising material in or on any vehicle.

Maximum penalty—5 penalty units.

(2) Application of this section This section applies whether the vehicle is situated in or on a public place or a private place.

(3) Exceptions This section does not apply to the deposit of—

(a)  any material by a person who is the custodian of the vehicle or is acting with the express consent of the custodian of the vehicle, or

(b)  any material by a person who deposits it in accordance with any regulations made for the purposes of this section or in such circumstances as may be prescribed by any regulations made for the purposes of this section.

(4)  For the purposes of subsection (3) (a), a person is not the custodian of a vehicle parked at a parking station merely because the person is the custodian of the parking station. In this subsection, parking station means a place (such as a car park) provided for the parking of vehicles, and includes a place or place of a class prescribed by the regulations.

ss 146A–146C: Ins 2000 No 20, Sch 1 [9].

A person must not cause, ask, require or induce, or attempt to cause, ask, require or induce, another person to do anything that contravenes or would contravene section 146A or 146B.

Maximum penalty—

•  in the case of a corporation—30 penalty units, or

•  in the case of an individual—7 penalty units.

ss 146A–146C: Ins 2000 No 20, Sch 1 [9].

(1)  The EPA is required to furnish to the Minister a biennial report on littering.

(2)  The report is to contain estimates of the composition and quantity of litter, by reference to locations considered by the EPA to be places of significant littering activity.

(3)  The EPA must cause advertisements to be published setting out the proposed methodology to be used in compiling such reports and inviting comments from members of the public concerning the proposed methodology. The EPA must allow at least 30 days for such comments to be made, and must consider comments received within the time allowed.

(4)  The Minister is to cause a copy of each report to be laid before both Houses of Parliament within 30 sitting days after receiving the report.

(5)  If the Minister, after consideration of the report, is of the opinion that—

(a)  the managers or other persons responsible for any of the locations referred to in subsection (2), or

(b)  the producers of or other persons responsible for any products whose components or packaging comprise litter at any such locations,

are not acting in a manner that minimises littering, the Minister may make recommendations aimed at improving litter avoidance strategies.

s 146D: Ins 2000 No 20, Sch 1 [9]. Am 2001 No 112, Sch 2.29; 2006 No 58, Sch 1.24 [2]; 2006 No 120, Sch 1.22 [1].

(1) Offence of releasing balloons A person who releases 20 or more balloons at or about the same time is guilty of an offence if the balloons are inflated with a gas that causes them to rise in the air.

Maximum penalty (for a corporation or an individual): 10 penalty units.

(2) Offence of causing or permitting release of balloons A person who causes or permits the release (whether by one or more than one person) of 20 or more balloons at or about the same time is guilty of an offence if the balloons are inflated with a gas that causes them to rise in the air.

Maximum penalty (for a corporation or an individual): 10 penalty units.

(3) Aggravated offence A person is guilty of an aggravated offence under this subsection if the person commits an offence under subsection (1) or (2) and the number of balloons released is more than 100.

Maximum penalty (instead of any penalty under subsection (1) or (2))—

•  in the case of a corporation—55 penalty units, or

•  in the case of an individual—33 penalty units.

(4) Exceptions Subsections (1)–(3) do not apply if—

(a)  the balloons are released unintentionally and without negligence, or

(b)  the balloons are released inside a building or structure and do not make their way into the open air, or

(c)  the balloons are hot air balloons that are recovered after landing, or

(d)  the balloons are released for scientific (including meteorological) purposes.

(5) Aggravation not proved If the court is satisfied that a person charged with an offence under subsection (3) is not guilty of that offence but is satisfied on the evidence that the person is guilty of an offence under subsection (1) or (2), the court may find the person guilty of the offence under subsection (1) or (2), and the person is liable to punishment accordingly.

(6) Evidence In any proceedings under this section—

(a)  it is not necessary for the prosecutor to establish the exact number of balloons released, and

(b)  evidence that a balloon rose in the air after being released is, in the absence of evidence to the contrary, evidence that the balloon was inflated with a gas that caused it to rise in the air.

s 146E: Ins 2000 No 82, Sch 1 [1].

This Part extends to State waters within the meaning of the Marine Pollution Act 2012, but not so as to make a person liable to be punished for both—

(a)  an offence under this Part, and

(b)  an offence under the Marine Pollution Act 2012 or the regulations under that Act.

s 146F: Ins 2012 No 5, Sch 1.5 [2].

(1)  For the purposes of this Part—

(a)  harm to the environment is material if—

(i)  it involves actual or potential harm to the health or safety of human beings or to ecosystems that is not trivial, or

(ii)  it results in actual or potential loss or property damage of an amount, or amounts in aggregate, exceeding $10,000 (or such other amount as is prescribed by the regulations), and

(b)  loss includes the reasonable costs and expenses that would be incurred in taking all reasonable and practicable measures to prevent, mitigate or make good harm to the environment.

(2)  For the purposes of this Part, it does not matter that harm to the environment is caused only in the premises where the pollution incident occurs.

(1) Kinds of incidents to be notified This Part applies where a pollution incident occurs in the course of an activity so that material harm to the environment is caused or threatened.

(2) Duty of person carrying on activity to notify A person carrying on the activity must, immediately after the person becomes aware of the incident, notify each relevant authority of the incident and all relevant information about it.

(3) Duty of employee engaged in carrying on activity to notify A person engaged as an employee in carrying on an activity must, immediately after the person becomes aware of the incident, notify the employer of the incident and all relevant information about it. If the employer cannot be contacted, the person is required to notify each relevant authority.

(3A) Duty of employer to notify Without limiting subsection (2), an employer who is notified of an incident under subsection (3) or who otherwise becomes aware of a pollution incident which is related to an activity of the employer, must, immediately after being notified or otherwise becoming aware of the incident, notify each relevant authority of the incident and all relevant information about it.

(4) Duty of occupier of premises to notify The occupier of the premises on which the incident occurs must, immediately after the occupier becomes aware of the incident, notify each relevant authority of the incident and all relevant information about it.

(5) Duty on employer and occupier to ensure notification An employer or an occupier of premises must take all reasonable steps to ensure that, if a pollution incident occurs in carrying on the activity of the employer or occurs on the premises, as the case may be, the persons engaged by the employer or occupier will, immediately, notify the employer or occupier of the incident and all relevant information about it.

(6) Extension of duty to agents and principals This section extends to a person engaged in carrying on an activity as an agent for another. In that case, a reference in this section to an employee extends to such an agent and a reference to an employer extends to the principal.

(7)    (Repealed)

(8) Meaning of “relevant authority” In this section—

relevant authority means the following—

(a)  the appropriate regulatory authority,

(b)  if the EPA is not the appropriate regulatory authority—the EPA,

(c)  if the EPA is the appropriate regulatory authority—the local authority for the area in which the pollution incident occurs,

(d)  the Ministry of Health,

(e)  SafeWork NSW as referred to in clause 1 of Schedule 2 to the Work Health and Safety Act 2011,

(f)  Fire and Rescue NSW.

s 148: Am 2005 No 96, Sch 1 [73] [74]; 2011 No 63, Sch 2 [2]–[4]; 2014 No 65, Sch 2.1 [6]; 2015 No 19, Sch 15.14; 2022 No 3, Sch 5[44].

(1)  If the regulations prescribe the manner or form of notifying pollution incidents under section 148, the notification is to conform to the requirements of the regulations.

(2)  Without limiting subsection (1), the regulations—

(a)  may require that verbal notification be followed by written notification, and

(b)  may provide that notification to a designated person or authority is taken to be notification to the relevant person or authority under section 148.

s 149: Am 2011 No 63, Sch 2 [5].

(1)  The relevant information about a pollution incident required under section 148 consists of the following—

(a)  the time, date, nature, duration and location of the incident,

(b)  the location of the place where pollution is occurring or is likely to occur,

(c)  the nature, the estimated quantity or volume and the concentration of any pollutants involved, if known,

(d)  the circumstances in which the incident occurred (including the cause of the incident, if known),

(e)  the action taken or proposed to be taken to deal with the incident and any resulting pollution or threatened pollution, if known,

(f)  other information prescribed by the regulations.

(2)  The information required by this section is the information known to the person notifying the incident when the notification is required to be given.

(3)  If the information required to be included in a notice of a pollution incident by subsection (1) (c), (d) or (e) is not known to that person when the initial notification is made but becomes known afterwards, that information must be notified in accordance with section 148 immediately after it becomes known.

s 150: Am 2011 No 63, Sch 2 [5]–[8].

(1)  A person is not required to notify a pollution incident under section 148 if the person is aware that the incident has already come to the notice of each person or authority required to be notified.

(2)  A person is not required to notify a pollution incident under section 148 if the incident is an ordinary result of action required to be taken to comply with an environment protection licence, an environment protection notice or other requirement of or made under this Act.

s 151: Am 2011 No 63, Sch 2 [5] [9].

(1)  This section applies to the occupier of premises where a pollution incident has occurred in the course of an activity so that material harm to the environment is caused or threatened.

(2)  The EPA may direct a person to whom this section applies to notify such other persons of the incident as the EPA requires.

(3)  The direction is not required to be given in writing.

(4)  The direction may specify the manner or form of notifying the pollution incident and the information that must be provided.

(5)  The direction may require that an initial verbal notification be followed by written notification.

(6)  A person must not fail to comply with a direction given under this section.

(7)    (Repealed)

(8)  If a direction under this section is given to a person who is carrying out an activity, is engaged as an employee in carrying out an activity, or is the employer of such a person, the obligations under this section are in addition to, and not in derogation of, the obligations under section 148 (except as provided by section 151 (1)).

s 151A: Ins 2011 No 63, Sch 2 [10]. Am 2014 No 65, Sch 2.1 [7].

A person who contravenes this Part is guilty of an offence.

Maximum penalty—

(a)  for a corporation—$4,000,000 and, for a continuing offence, a further penalty of $480,000 for each day the offence continues, or

(b)  for an individual—$1,000,000 and, for a continuing offence, a further penalty of $240,000 for each day the offence continues.

Note—

An offence against this section committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.

s 152: Am 2005 No 96, Sch 1 [75]; 2011 No 63, Sch 2 [11]; 2012 No 97, Sch 1.34 [22]; 2024 No 20, Sch 9[43].

(1)  A person is required to notify a pollution incident under this Part even though to do so might incriminate the person or make the person liable to a penalty.

(2)  Any notification given by a person under this Part is not admissible in evidence against the person for an offence or for the imposition of a penalty.

(3)  Subsection (2) does not apply to evidence obtained following or as a result of the notification.

The holder of an environment protection licence must prepare a pollution incident response management plan that complies with this Part in relation to the activity to which the licence relates.

Maximum penalty—

(a)  in the case of a corporation—$2,000,000 and, in the case of a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b)  in the case of an individual—$500,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues.

Note—

An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.

s 153A: Ins 2011 No 63, Sch 2 [12]. Am 2012 No 97, Sch 1.34 [23]; 2024 No 20, Sch 9[5]–[8].

(1)  The EPA may, in accordance with the regulations, require the occupier of premises at which industry is carried out to prepare a pollution incident response management plan that complies with this Part in relation to activities at the premises.

(2)  A person must not fail to comply with such a requirement.

Maximum penalty—

(a)  in the case of a corporation—$2,000,000 and, in the case of a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b)  in the case of an individual—$500,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues.

Note—

An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.

(3)  The regulations may make provision for or with respect to—

(a)  the class or classes of premises, or industries carried out at premises, that may be the subject of a requirement to prepare a pollution incident response management plan, and

(b)  the circumstances in which some or all premises within those classes may be the subject of a requirement to prepare a pollution incident response management plan.

s 153B: Ins 2011 No 63, Sch 2 [12]. Am 2012 No 97, Sch 1.34 [24]; 2024 No 20, Sch 9[5]–[8].

A pollution incident response management plan must be in the form required by the regulations and must include the following—

(a)  the procedures to be followed by the holder of the relevant environment protection licence, or the occupier of the relevant premises, in notifying a pollution incident to—

(i)  the owners or occupiers of premises in the vicinity of the premises to which the environment protection licence or the direction under section 153B relates, and

(ii)  the local authority for the area in which the premises to which the environment protection licence or the direction under section 153B relates are located and any area affected, or potentially affected, by the pollution, and

(iii)  any persons or authorities required to be notified by Part 5.7,

(b)  a detailed description of the action to be taken, immediately after a pollution incident, by the holder of the relevant environment protection licence, or the occupier of the relevant premises, to reduce or control any pollution,

(c)  the procedures to be followed for co-ordinating, with the authorities or persons that have been notified, any action taken in combating the pollution caused by the incident and, in particular, the persons through whom all communications are to be made,

(d)  any other matter required by the regulations.

s 153C: Ins 2011 No 63, Sch 2 [12].

A person who is required to prepare a pollution incident response management plan under this Part must ensure that it is kept at the premises to which the relevant environment protection licence relates, or where the relevant activity takes place, and is made available in accordance with the regulations.

Maximum penalty—

(a)  in the case of a corporation—$2,000,000 and, in the case of a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b)  in the case of an individual—$500,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues.

Note—

An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.

s 153D: Ins 2011 No 63, Sch 2 [12]. Am 2012 No 97, Sch 1.34 [25]; 2024 No 20, Sch 9[5]–[8].

A person who is required to prepare a pollution incident response management plan under this Part must ensure that it is tested in accordance with the regulations.

Maximum penalty—

(a)  in the case of a corporation—$2,000,000 and, in the case of a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b)  in the case of an individual—$500,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues.

Note—

An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.

s 153E: Ins 2011 No 63, Sch 2 [12]. Am 2012 No 97, Sch 1.34 [26]; 2024 No 20, Sch 9[5]–[8].

If a pollution incident occurs in the course of an activity so that material harm to the environment (within the meaning of section 147) is caused or threatened, the person carrying on the activity must immediately implement any pollution incident response management plan in relation to the activity required by this Part.

Maximum penalty—

(a)  for a corporation—$4,000,000 and, for a continuing offence, a further penalty of $480,000 for each day the offence continues, or

(b)  for an individual—$1,000,000 and, for a continuing offence, a further penalty of $240,000 for each day the offence continues.

Note—

An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.

s 153F: Ins 2011 No 63, Sch 2 [12]. Am 2012 No 97, Sch 1.34 [27]; 2024 No 20, Sch 9[44].

(1)  The occupier of any premises must maintain any control equipment installed at the premises in an efficient condition.

(2)  The occupier of any premises must operate any control equipment installed at the premises in a proper and efficient manner.

(3)  This section does not apply to any control equipment prescribed by the regulations as being excluded from this section.

(4)  An occupier of premises who contravenes this section is guilty of an offence.

Maximum penalty—

(a)  in the case of a corporation—$2,000,000 and, in the case of a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b)  in the case of an individual—$500,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues.

Note—

An offence against subsection (4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.

Note—

control equipment is defined in the Dictionary.

s 167: Am 2005 No 96, Sch 1 [83]; 2012 No 97, Sch 1.34 [30]; 2024 No 20, Sch 9[5]–[8].

(1)  A person who supplies information to the EPA that is false or misleading in a material respect is guilty of an offence.

Maximum penalty—

(a)  for a corporation—$1,000,000, or

(b)  for an individual—$500,000.

Note—

An offence under this subsection committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.

(2)  It is a defence in proceedings against a person for an offence under subsection (1) if the person establishes that the person took all reasonable steps to ensure the information was not false or misleading in a material respect.

(3)  A person who supplies information to the EPA that the person knows is false or misleading in a material respect is guilty of an offence.

Maximum penalty—

(a)  for a corporation—$2,000,000, or

(b)  for an individual—$1,000,000 or imprisonment for 18 months, or both.

(4)  If the court is satisfied that a person charged with an offence under subsection (3) is not guilty of that offence but is satisfied on the evidence that the person is guilty of an offence under subsection (1), the court may find the person guilty of the offence under subsection (1), and the person is liable to punishment accordingly.

(5)  Proceedings for an offence against this section may be instituted only by the EPA.

(6)  Despite section 215, proceedings for an offence under subsection (3) may not be dealt with before the Local Court.

(7)  In this section—

information includes a record containing information.

supply information includes cause or permit information to be supplied.

s 167A: Ins 2022 No 3, Sch 5[45]. Am 2023 No 7, Sch 1.19[2]; 2024 No 20, Sch 9[5] [7] [10].

(1)  Any of the following persons who receives, acquires or accrues a monetary benefit as a result of the commission by a corporation of a proved offence under this Act or the regulations (the underlying offence) is guilty of an offence—

(a)  a person who is, or was, at the time of the commission of the underlying offence, a director of the corporation,

(b)  a related entity,

(c)  a person who is, or was, at the time of the commission of the underlying offence, a director of a related body corporate.

Maximum penalty—

(a)  for a corporation—the maximum penalty that applies to a corporation for the underlying offence, or

(b)  for an individual—the maximum penalty that applies to an individual for the underlying offence.

(2)  Proceedings for an offence under this section may be commenced—

(a)  after the date on which the underlying offence is alleged to have been committed, but

(b)  despite section 216, no later than the later of the following—

(i)  the date that is 12 months after the date on which a court finds the underlying offence proved,

(ii)  the date by which the proceedings may be commenced under section 216(2).

(3)  Despite section 215, proceedings for an offence under this section may not be dealt with before the Local Court.

(4)  Without limiting subsection (1) or (2)(b)(i), a court finds an offence proved if—

(a)  the court convicts the offender of the offence, or

(b)  the court makes an order under the Crimes (Sentencing Procedure) Act 1999, section 10 against the offender in relation to the offence.

(5)  A reference in subsection (1) to a director of a corporation or related body corporate extends to a person involved in the management of the affairs of the corporation or body corporate.

s 167B: Ins 2022 No 3, Sch 5[45]. Am 2024 No 20, Sch 9[45].

(1)  A person who—

(a)  aids, abets, counsels or procures another person to commit, or

(b)  attempts to commit, or

(c)  conspires to commit,

an offence under another provision of this Act or the regulations is guilty of an offence against that other provision and is liable, on conviction, to the same penalty applicable to an offence against that other provision.

(2)  A person does not commit an offence because of this section for any act or omission that is an offence under section 169B.

s 168: Am 2012 No 97, Sch 1.34 [31].

(1)  If a corporation contravenes, whether by act or omission, a provision of this Act attracting special executive liability, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that—

(a)    (Repealed)

(b)  the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or

(c)  the person, if in such a position, used all due diligence to prevent the contravention by the corporation.

(1A)  For the purposes of this section, each of the following provisions attract special executive liability—

(a)  section 49 (2),

(b)  section 64 (1),

(c)  section 66 (2) or (4),

(d)  section 102,

(e)  section 113,

(f)  section 115 (1),

(g)  section 116 (1) or (2),

(h)  section 117 (1),

(i)  section 120 (1),

(j)  section 124,

(k)  section 125,

(l)  section 126,

(m)  section 128,

(n)  section 142A (1),

(o)  section 143 (1),

(p)  section 144 (1),

(p1)  section 144AAA (1),

(p2)  section 144AAB,

(q)  section 152,

(r)  section 296C(1),

(s)  section 296E(1).

(2)  A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision.

(3)  Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.

(4), (5)    (Repealed)

s 169: Am 2005 No 96, Sch 1 [84]–[86]; 2012 No 97, Sch 1.34 [32]–[34]; 2018 No 80, Sch 1 [9]; 2024 No 10, Sch 1[3].

(1)  For the purposes of this section, an executive liability offence is an offence against any of the following provisions of this Act that is committed by a corporation—

(a)  section 47 (1),

(b)  section 48 (2),

(c)  section 86 (3),

(d)  section 91B,

(e)  section 97,

(f)  section 112,

(g)  section 129,

(h)  section 136,

(i)  section 137,

(j)  section 139,

(k)  section 140,

(l)  section 144AA (1),

(m)  section 153A,

(n)  section 153B (2),

(o)  section 153D,

(p)  section 153E,

(q)  section 153F,

(r)  section 155,

(s)  section 156,

(t)  section 167 (4),

(u)  section 167A(1),

(v)  section 296F(7),

(w)  section 296L(1).

(2)  A person commits an offence against this section if—

(a)  a corporation commits an executive liability offence, and

(b)  the person is—

(i)  a director of the corporation, or

(ii)  an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the executive liability offence, and

(c)  the person—

(i)  knows or ought reasonably to know that the executive liability offence (or an offence of the same type) would be or is being committed, and

(ii)  fails to take all reasonable steps to prevent or stop the commission of that offence.

Maximum penalty—The maximum penalty for the executive liability offence if committed by an individual.

(3)  The prosecution bears the legal burden of proving the elements of the offence against this section.

(4)  The offence against this section can only be prosecuted by a person who can bring a prosecution for the executive liability offence.

(5)  This section does not affect the liability of the corporation for the executive liability offence, and applies whether or not the corporation is prosecuted for, or convicted of, the executive liability offence.

(6)  This section does not affect the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are accessories to the commission of the executive liability offence or are otherwise concerned in, or party to, the commission of the executive liability offence.

(7)  In this section—

director has the same meaning it has in the Corporations Act 2001 of the Commonwealth.

reasonable steps, in relation to the commission of an executive liability offence, includes, but is not limited to, such action (if any) of the following kinds as is reasonable in all the circumstances—

(a)  action towards—

(i)  assessing the corporation’s compliance with the provision creating the executive liability offence, and

(ii)  ensuring that the corporation arranged regular professional assessments of its compliance with the provision,

(b)  action towards ensuring that the corporation’s employees, agents and contractors are provided with information, training, instruction and supervision appropriate to them to enable them to comply with the provision creating the executive liability offence so far as the provision is relevant to them,

(c)  action towards ensuring that—

(i)  the plant, equipment and other resources, and

(ii)  the structures, work systems and other processes,

relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,

(d)  action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.

s 169A: Ins 2012 No 97, Sch 1.34 [35]. Am 2022 No 3, Sch 5[46] [47]; 2024 No 10, Sch 1[4].

(1)  For the purposes of this section, a corporate offence is an offence against this Act or the regulations that is capable of being committed by a corporation, whether or not it is an offence referred to in section 169 or 169A.

(2)  A person commits an offence against this section if—

(a)  a corporation commits a corporate offence, and

(b)  the person is—

(i)  a director of the corporation, or

(ii)  an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the corporate offence, and

(c)  the person—

(i)  aids, abets, counsels or procures the commission of the corporate offence, or

(ii)  induces, whether by threats or promises or otherwise, the commission of the corporate offence, or

(iii)  conspires with others to effect the commission of the corporate offence, or

(iv)  is in any other way, whether by act or omission, knowingly concerned in, or party to, the commission of the corporate offence.

Maximum penalty—The maximum penalty for the corporate offence if committed by an individual.

(3)  The prosecution bears the legal burden of proving the elements of the offence against this section.

(4)  The offence against this section can only be prosecuted by a person who can bring a prosecution for the corporate offence.

(5)  This section does not affect the liability of the corporation for the corporate offence, and applies whether or not the corporation is prosecuted for, or convicted of, the corporate offence.

(6)  This section does not affect the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are concerned in, or party to, the commission of the corporate offence.

s 169B: Ins 2012 No 97, Sch 1.34 [35].

(1)  Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.

(2)  In this section, the state of mind of a person includes—

(a)  the knowledge, intention, opinion, belief or purpose of the person, and

(b)  the person’s reasons for the intention, opinion, belief or purpose.

s 169C: Ins 2012 No 97, Sch 1.34 [35].

A person is guilty of a particular offence against this Act or the regulations in respect of any act or omission done or omitted by the person outside the State—

(a)  if the act or omission causes any substance to come into the State, and

(b)  if the substance causes harm or is likely to cause harm to the environment of the State, and

(c)  if (apart from this section) the act or omission would have constituted that offence if it had been done or omitted within the State.

(1)  This Chapter does not affect other provisions of this Act, which provide for—

(a)  conditions on environment protection licences requiring—

(i)  monitoring or testing, or

(ii)  reporting on monitoring or testing, and

(b)  functions exercisable by the appropriate regulatory authority or authorised officers for the purpose of auditing compliance with this Act, the regulations and conditions of licences.

(2)  This Chapter does not affect provisions of this or any other Act relating to pollution reduction programs or industry waste reduction programs.

An environmental audit is a documented evaluation of an activity (including an evaluation of management practices, systems and plant) for either or both of the following purposes—

(a)  to provide information to the persons managing the activity on compliance with legal requirements, codes of practice and relevant policies relating to the protection of the environment,

(b)  to enable those persons to determine whether the way the activity is carried on can be improved in order to protect the environment and to minimise waste.

s 172: Am 2001 No 56, Sch 1.14 [9].

The regulations may make provision for or with respect to either or both of the following—

(a)  the accreditation of environmental auditors for the purposes of this Chapter,

(b)  the carrying out of environmental audits by environmental auditors, including—

(i)  the protection of documents prepared for environmental audits, and

(ii)  the admissibility in a court or tribunal of documents prepared for environmental audits.

s 173: Am 2024 No 20, Sch 9[46].

(1)  The conditions of a licence may require a mandatory environmental audit to be undertaken to the satisfaction of the appropriate regulatory authority.

(2)  Such a condition must specify the purpose of the audit.

(3)  Such a condition may require—

(a)  appointment of an environmental auditor to undertake the audit, and

(b)  approval by the appropriate regulatory authority of the environmental auditor before being appointed, and

(c)  preparation of written documentation during the course of the audit, and

(d)  preparation of an audit report, and

(e)  production to the appropriate regulatory authority of the audit report.

(4)  Such a condition may—

(a)  specify the format and level of detail required for the audit, or

(b)  require the environmental auditor to submit the proposed format and level of detail to the appropriate regulatory authority for approval.

Conditions requiring the undertaking of a mandatory environmental audit may only be imposed if—

(a)  the appropriate regulatory authority reasonably suspects—

(i)  that the holder of the licence has on one or more occasions contravened this Act, the regulations or the conditions of the licence, and

(ii)  that the contravention or contraventions have caused, are causing or are likely to cause, harm to the environment, or

(b)  the appropriate regulatory authority reasonably suspects that an activity has been or is being carried out by the holder of the licence in an environmentally unsatisfactory manner (within the meaning of section 95).

s 175: Subst 2011 No 63, Sch 2 [13].

The audit report for a mandatory environmental audit is taken not to have been duly produced to the appropriate regulatory authority unless it is accompanied by—

(a)  a declaration signed by the holder of the licence certifying that the holder has not knowingly provided any false or misleading information to the environmental auditor and has provided all relevant information to the auditor, and

(b)  a declaration signed by the environmental auditor—

(i)  setting out the auditor’s qualifications, and

(ii)  certifying that the report is accurate, and that the auditor has not knowingly included any false or misleading information in it or failed to include any relevant information in it.

(1) False or misleading information to auditor A person who provides information to an environmental auditor in connection with a mandatory environmental audit, knowing the information to be false or misleading in a material respect, is guilty of an offence.

Maximum penalty—

(a)  for a corporation—$2,000,000 and, for a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b)  for an individual—$500,000 or imprisonment for 18 months, or both, and, for a continuing offence, a further penalty of $120,000 for each day the offence continues.

(2) Information not provided to auditor The holder of a licence who fails to provide information to an environmental auditor in connection with a mandatory environmental audit being carried out in relation to the licence, knowing the information to be materially relevant to the audit, is guilty of an offence.

Maximum penalty—

(a)  for a corporation—$2,000,000 and, for a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b)  for an individual—$500,000 or imprisonment for 18 months, or both, and, for a continuing offence, a further penalty of $120,000 for each day the offence continues.

(3) False or misleading information in audit report An environmental auditor who includes information in an audit report produced to the appropriate regulatory authority in connection with a mandatory environmental audit, knowing the information to be false or misleading in a material respect, is guilty of an offence.

Maximum penalty—

(a)  for a corporation—$2,000,000 and, for a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b)  for an individual—$500,000 or imprisonment for 18 months, or both, and, for a continuing offence, a further penalty of $120,000 for each day the offence continues.

(4) Information not included in audit report An environmental auditor who fails to provide information in an audit report produced to the appropriate regulatory authority in connection with a mandatory environmental audit, knowing the information to be materially relevant to the audit, is guilty of an offence.

Maximum penalty—

(a)  for a corporation—$2,000,000 and, for a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b)  for an individual—$500,000 or imprisonment for 18 months, or both, and, for a continuing offence, a further penalty of $120,000 for each day the offence continues.

(5) Retention of audit documentation The holder of a licence who—

(a)  fails to retain any written documentation required to be prepared by the holder in connection with a mandatory environmental audit for a period of at least 5 years after the audit report concerned was produced to the appropriate regulatory authority (or such other period as is prescribed by the regulations), or

(b)  fails to produce during that period any such documentation to the appropriate regulatory authority on request,

is guilty of an offence.

Maximum penalty—

(a)  for a corporation—$500,000 and, for a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b)  for an individual—$240,000 and, for a continuing offence, a further penalty of $120,000 for each day the offence continues.

s 177: Am 2022 No 3, Sch 5[48]–[50]; 2024 No 20, Sch 9[5]–[8].

Information must be supplied by a person in connection with a mandatory environmental audit, and this Part applies to any such information that is supplied, whether or not the information might incriminate the person.

(1)  Any information in an audit report or other documentation supplied to the appropriate regulatory authority in connection with a mandatory environmental audit may be taken into consideration by the appropriate regulatory authority and used for the purposes of this Act.

(2)  Without limiting the above, any such information is admissible in evidence in any prosecution of the holder of a licence for any offence (whether under this Act or otherwise).

Powers may be exercised under this Chapter for the following purposes—

(a)  for determining whether there has been compliance with or a contravention of this Act or the regulations or any environment protection licence, notice or requirement issued or made under this Act,

(b)  for obtaining information or records for purposes connected with the administration of this Act,

(c)  generally for administering this Act and protecting the environment.

(1)  Nothing in this Chapter affects any function under any other Chapter of this Act or under any other Act.

(2)  Nothing in this Chapter limits conditions that can be attached to an environment protection licence.

This Chapter extends to the exercise of powers in connection with the following legislation—

(a)  Waste Avoidance and Resource Recovery Act 2001 and the regulations under that Act,

(a1)  Dangerous Goods (Road and Rail Transport) Act 2008 and the regulations under that Act,

(b)  Ozone Protection Act 1989 and the regulations under that Act,

(b1)  Pesticides Act 1999 and the regulations under that Act,

(b2)  Protection from Harmful Radiation Act 1990 and the regulations under that Act,

(b3)  Snowy Mountains Cloud Seeding Act 2004 and the regulations under that Act,

(b4)  Contaminated Land Management Act 1997 and the regulations under that Act,

(b5)  Plastic Reduction and Circular Economy Act 2021 and the regulations under that Act,

(b6)  any other environment protection legislation prescribed by the regulations for the purposes of this paragraph,

(c)  any repealed provision of any Act or regulation amended or repealed by this Act, in respect to offences committed against the Act or regulation before its repeal or in respect of any other matter that continues to have any force or effect (except as provided by or by regulations under Schedule 5),

(d)  any provision of the Pesticides Act 1978 in respect of offences committed under that Act (before its repeal by the Pesticides Act 1999) or in respect of any other matter that continues to have any force or effect (except as provided by regulations under Schedule 5 or under Schedule 2 to the Pesticides Act 1999).

Accordingly, a reference in this Chapter to this Act or the regulations includes a reference to each of those Acts or regulations.

s 186: Am 1999 No 31, Sch 1.37 [12]; 1999 No 80, Sch 3.6 [2] [3]; 2001 No 58, Sch 2 [7]; 2002 No 14, Sch 1 [8]; 2012 No 73, Sch 2.2; 2017 No 21, Sch 3 [7]; 2021 No 31, Sch 3.3[1]; 2022 No 3, Sch 5[51]; 2023 No 30, Sch 2.7[1]; 2024 No 20, Sch 9[48].

(1)  The EPA may appoint any person (including a class of persons) as an authorised officer for the purposes of this Act.

(2)  Any other regulatory authority may appoint any officer or employee of the authority (including a class of such officers or employees) as an authorised officer for the purposes of this Act.

(2A)  In addition, a regulatory authority that is a local council may appoint any officer or employee of another local council (including a class of such officers or employees) as an authorised officer for the purposes of this Act in respect of the appointing local council’s area.

(3)  In this section—

employee of an authority includes a person whose services are used by the authority and who is, in respect of those services, subject to the direction and control of the authority.

s 187: Am 2002 No 14, Sch 2 [10]; 2002 No 53, Sch 1.22 [1]; 2002 No 112, Sch 1.23 [1].

(1)  An authorisation of a person as an authorised officer can be given generally, or subject to conditions, limitations or restrictions or only for limited purposes.

(2)  If such authorisation is given subject to conditions, limitations or restrictions or only for limited purposes, nothing in this Act authorises or requires the authorised officer to act in contravention of the conditions, limitations or restrictions or for other purposes.

(3)  The authorisation of an authorised officer appointed by a regulatory authority other than the EPA is limited to matters concerning the functions of the regulatory authority under this Act.

(4)  Despite subsection (3) and any other provision of this Chapter, an authorised officer of a regulatory authority may exercise powers under this Chapter (other than under Part 7.6) for the purpose of determining whether a matter concerns the functions of the regulatory authority.

s 188: Am 2002 No 14, Sch 2 [11].

(1)  Every authorised officer or enforcement officer, who is not a police officer, is to be provided with an identification card as an authorised officer or enforcement officer by the regulatory or other authority that appointed the officer.

(2)  In the course of exercising the functions of an authorised officer or enforcement officer under this Act, the officer must, if requested to do so by any person affected by the exercise of any such function, produce to the person the officer’s identification card, issued in accordance with this section, or, in the case of a police officer, the officer’s police identification.

(3)  It is sufficient compliance with subsection (2) if an enforcement officer, acting in the capacity of an enforcement officer, who is also an authorised officer produces his or her identification card as an authorised officer.

s 189: Am 2002 No 14, Sch 2 [12] [13]; 2004 No 55, Sch 1.20 [2]; 2008 No 62, Sch 1.27 [2].

An enforcement officer has, in respect of any of the officer’s responsibilities or functions as an enforcement officer under this Act or the regulations, the functions of an authorised officer under this Chapter (other than section 204 (2) and Part 7.6) and this Chapter applies accordingly.

s 189A: Ins 2002 No 14, Sch 2 [14].

This Part applies whether or not a power of entry under Part 7.4 is being or has been exercised.

(1)  The EPA may, by notice in writing given to a person, require the person to furnish to it such information or records (or both) as it requires by the notice in connection with any matter relating to its responsibilities or functions under this Act.

(2)  This section is not limited to matters in respect of which the EPA is the appropriate regulatory authority.

(1)  A regulatory authority (other than the EPA) may, by notice in writing given to a person, require the person to furnish to it such information or records (or both) as it requires by the notice in connection with any matter relating to its responsibilities or functions under this Act.

(2)  This section is limited to matters in respect of which the authority is the appropriate regulatory authority.

(1)  An authorised officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as the officer requires by the notice in connection with any matter within the responsibilities and functions of the regulatory authority that appointed the officer.

(2)  In the case of authorised officers appointed by the EPA, this section is not limited to matters in respect of which the EPA is the appropriate regulatory authority.

A notice under this Part must specify the manner in which information or records are required to be furnished and a reasonable time by which the information or records are required to be furnished.

(1)  A notice under this Part may only require a person to furnish existing records that are in the person’s possession or that are within the person’s power to obtain lawfully.

(2)  The body or person to whom any record is furnished under this Part may take copies of it.

(3)  If any record required to be furnished under this Part is in electronic, mechanical or other form, the notice requires the record to be furnished in written form, unless the notice otherwise provides.

(1)  An authorised officer may enter—

(a)  any premises at which the authorised officer reasonably suspects that any industrial, agricultural or commercial activities are being carried out—at any time during which those activities are being carried out there, and

(b)  any premises at or from which the authorised officer reasonably suspects pollution has been, is being or is likely to be caused—at any time, and

(b1)  premises at or from which the authorised officer reasonably suspects an offence against this Act or the regulations involving an industrial chemical or an environmentally hazardous chemical is being or is likely to be committed—at any time, and

(c)  any other premises—at any reasonable time.

(2)  A power to enter premises conferred by this Act authorises entry by foot or by means of a motor vehicle or other vehicle, or by an aircraft or vessel, or in any other manner.

(2A)  If entry is effected by means of an unmanned vehicle, vessel or aircraft, the vehicle, vessel or aircraft must be operated by or under the authority of an authorised officer.

(3)  Entry may be effected under this Act by an authorised officer with the aid of such authorised officers or police officers as the authorised officer considers necessary and with the use of reasonable force.

(4)  Entry may be effected to any premises with the authority of a search warrant under section 199.

s 196: Am 1999 No 80, Sch 3.6 [4]; 2017 No 21, Sch 3 [8] [9]; 2024 No 10, Sch 1[5].

This Part does not empower an authorised officer to enter any part of premises used only for residential purposes without the permission of the occupier or the authority of a search warrant under section 199.

(1)  An authorised officer may, at any premises lawfully entered, do anything that in the opinion of the authorised officer is necessary to be done for the purposes of this Chapter, including (but not limited to) the things specified in subsection (2).

(2)  An authorised officer may do any or all of the following—

(a)  examine and inspect any works, plant, vehicle, aircraft or other article,

(b)  take and remove samples,

(c)  make such examinations, inquiries and tests as the authorised officer considers necessary,

(d)  take such photographs, films, audio, video and other recordings as the authorised officer considers necessary,

(e)  require records to be produced for inspection,

(f)  examine and inspect any records,

(g)  copy any records,

(h)  seize anything the authorised officer reasonably suspects—

(i)  is connected with an offence against this Act or the regulations, or

(ii)  may present a risk of harm to human health or the environment,

(h1)  for the purposes of paragraph (h), direct the occupier of the premises where the thing is seized to retain it at those premises or at another place under the control of the occupier,

(i)  do any other thing the authorised officer is empowered to do under this Chapter.

(3)  The power to seize anything connected with an offence includes a power to seize—

(a)  a thing with respect to which the offence has been committed, and

(b)  a thing that will afford evidence of the commission of the offence, and

(c)  a thing that was used for the purpose of committing the offence.

A reference to any such offence includes a reference to an offence that there are reasonable grounds for believing has been committed.

s 198: Am 1999 No 80, Sch 3.6 [5] [6]; 2000 No 53, Sch 1.23 [1]; 2024 No 20, Sch 9[49].

(1)  An authorised officer may turn off or otherwise disable a building intruder alarm or a motor vehicle intruder alarm that is or has been sounding in breach of this Act or the regulations.

(2)  In this section—

motor vehicle intruder alarm means a device that—

(a)  incorporates or connects to a sounding device, and

(b)  on being triggered, causes the sounding device to emit sound,

being a device that is attached to or forms part of the motor vehicle for use as an intruder alarm, whether or not the device is also designed to be used for any other purpose.

s 198A: Ins 2005 No 96, Sch 1 [87].

(1) Application for search warrant An authorised officer under this Act may apply to an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 for the issue of a search warrant if the authorised officer under this Act believes on reasonable grounds that—

(a)  a provision of this Act or the regulations is being or has been contravened at any premises, or

(b)  there is in or on any premises matter or a thing that is connected with an offence under this Act or the regulations.

(2) Issue of search warrant An authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an authorised officer under this Act named in the warrant—

(a)  to enter the premises, and

(b)  to exercise any function of an authorised officer under this Part.

(3)  Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.

(4) Definition In this section—

matter or a thing connected with an offence means—

(a)  matter or a thing with respect to which the offence has been committed, or

(b)  matter or a thing that will afford evidence of the commission of an offence, or

(c)  matter or a thing that was used, or is intended to be used, for the purpose of committing the offence.

offence includes an offence that there are reasonable grounds for believing has been, or is to be, committed.

Note—

premises is defined in the Dictionary.

s 199: Am 2002 No 14, Sch 2 [15] [16]; 2002 No 103, Sch 4.73 [1]–[4].

A person may accompany an authorised officer and take all reasonable steps to assist an authorised officer in the exercise of the authorised officer’s functions under this Part if the authorised officer is of the opinion that the person is capable of providing assistance to the authorised officer in the exercise of those functions.

s 199A: Ins 1999 No 80, Sch 3.6 [7].

(1)  This section applies for the purpose of enabling an authorised officer to exercise any of the powers of an authorised officer under this Part in connection with any premises.

(2)  The EPA or other regulatory authority that appointed the authorised officer may, by notice in writing given to the owner or occupier of the premises, require the owner or occupier to provide such reasonable assistance and facilities as are specified in the notice within a specified time and in a specified manner.

(3)  Assistance and facilities can be required under this section, whether they are of the same kind as, or a different kind from, any prescribed by the regulations.

In the exercise of a power of entering or searching premises under this Part, the authorised officer must do as little damage as possible.

The EPA or other regulatory authority that appoints an authorised officer must compensate all interested parties for any damage caused by the authorised officer in exercising a power of entering premises (but not any damage caused by the exercise of any other power), unless the occupier obstructed or hindered the authorised officer in the exercise of the power of entry.

(1)  An authorised officer may require a person whom the authorised officer suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required for the purposes of this Act to answer questions in relation to those matters.

(2)  The EPA or any other regulatory authority may, by notice in writing, require a corporation to nominate, in writing within the time specified in the notice, a director or officer of the corporation to be the corporation’s representative for the purpose of answering questions under this section.

(3)  Answers given by a person nominated under subsection (2) bind the corporation.

(4)  In the case of authorised officers appointed by the EPA, subsection (1) is not limited to matters in respect of which the EPA is the appropriate regulatory authority.

(5)  An authorised officer may, by notice in writing, require a person to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered.

(6)  The place and time at which a person may be required to attend under subsection (5) is to be—

(a)  a place or time nominated by the person, or

(b)  if the place and time nominated is not reasonable in the circumstances or a place and time is not nominated by the person, a place and time nominated by the authorised officer that is reasonable in the circumstances.

(7)  The authorised officer may, in the notice under subsection (5) or in a subsequent notice, authorise the person to answer the questions using an audio link or audio visual link of a kind approved by the authorised officer.

(8)  If the questions are to be answered by the person using an audio link or audio visual link—

(a)  the place at which the person is required to attend is taken to be any place having adequate facilities for the answering of questions in that way at the time nominated under subsection (6), and

(b)  the person must ensure the audio link or audio visual link is operated appropriately so that the answers given to the questions are clear to the authorised officer.

(9)  In this section—

audio link means technology that enables continuous and contemporaneous audio communication between persons at different places, including telephones.

audio visual link means technology that enables continuous and contemporaneous audio and visual communication between persons at different places, including video conferencing.

(10)    (Repealed)

s 203: Am 1997 No 156, sec 203(10); 2005 No 96, Sch 1 [88]; 2020 No 5, Sch 1.25; 2021 No 5, Sch 1.22; 2022 No 5, Sch 1.14.

(1)  An authorised officer may cause any questions and answers to questions given under this Part to be recorded if the officer has informed the person who is to be questioned that the record is to be made.

(2)  A record may be made using sound recording apparatus or audio visual apparatus, or any other method determined by the authorised officer.

(3)  A copy of any such record must be provided by the authorised officer to the person who is questioned as soon as practicable after it is made.

(4)  A record may be made under this section despite the provisions of any other law.

s 203A: Ins 2005 No 96, Sch 1 [89].

(1) Name and address to be given if offence suspected An authorised officer may require a person whom the authorised officer suspects on reasonable grounds to have offended or to be offending against this Act or the regulations to state his or her full name and residential address.

(2) Name and address to be given in connection with noise If an authorised officer forms the opinion on reasonable grounds that a noise control notice or a noise abatement direction may be issued under Part 8.6 against a person, the authorised officer may require the person to state the person’s full name and residential address.

(2A) Proof of name and address An authorised officer may request a person who is required under this section to state his or her full name and residential address to provide proof of the name and address. It is not an offence under section 211 to fail to comply with any such request.

(3) Power of arrest A person who, being required to do so under this section—

(a)  refuses to state his or her name or residential address, or

(b)  states a name or residential address that in the opinion of the authorised officer is false,

may without any other warrant than this Act be apprehended by the authorised officer and taken before a Magistrate or court officer to be dealt with according to law.

(4) Bail A Magistrate or court officer before whom a person is taken under subsection (3) may make a bail decision under the Bail Act 2013 in respect of the person.

(4A)  If the person has not been charged with an offence, the Bail Act 2013 applies as if the person were accused of an offence.

(4B)  For the purpose of applying the Bail Act 2013, a court officer has the same functions as an authorised justice under that Act.

(5) Maximum penalty The maximum penalty for an offence under section 211 in connection with a requirement under this section is 100 penalty units despite anything to the contrary in that section.

(6)  In this section—

court officer means an authorised officer under the Criminal Procedure Act 1986.

s 204: Am 2001 No 121, Sch 2.174 [1] [2]; 2005 No 96, Sch 1 [90]; 2014 No 5, Sch 2.27 [1]–[3].

In this Part—

article includes any plant, motor or other vehicle, aircraft, vessel or other thing of any description.

authorised officer—

(a)  means, except in sections 206 and 208, only an authorised officer appointed by the EPA, and

(b)  extends, in sections 206 and 208, to a police officer, and

(c)  extends, in sections 206 and 208, in relation to vessels only, to an officer or employee of the marine authority authorised by the authority for the purposes of those sections, and

(d)  extends, in sections 206 and 208, in relation to vessels situated within marine parks and aquatic reserves, to an authorised officer appointed under the Marine Estate Management Act 2014 authorised by the relevant Ministers (within the meaning of that Act) for the purposes of those sections.

s 205: Am 1998 No 120, Sch 1.35 [2] [3]; 1999 No 80, Sch 3.6 [8]; 2004 No 91, Sch 2.65; 2005 No 96, Sch 1 [91]; 2014 No 72, Sch 4.13 [1].

Nothing in this Part limits the functions that may be exercised under any other Part of this Chapter.

s 205A: Ins 1999 No 80, Sch 3.6 [9].

(1)  An authorised officer may, for the purposes of this Chapter, inspect and test any article.

(2)  The authorised officer may, for the purposes of any such inspection or testing—

(a)  enter the article, and

(b)  enter in accordance with this Act the premises where the article is located, and

(c)  operate the article, and

(d)  take photographs or video films of the article, and

(e)  inspect or test any substance being carried by the article or in any container on the article (including in a fuel tank), and

(f)  take a sample of any such substance for testing.

s 206: Am 1998 No 120, Sch 1.35 [4]; 2005 No 96, Sch 1 [92].