Chapter 3 Environment protection licences
42 Environment protection licences
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.
45 Matters to be taken into consideration in licensing functions
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 (as referred to in section 83),(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 Threatened Species Conservation Act 1995 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.
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.
Part 3.2 Licences required for scheduled development work and scheduled activities
47 Licensing requirement—scheduled development work
(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—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or(b) in the case of an individual—$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.(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.
48 Licensing requirement—scheduled activities (premises-based)
(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—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or(b) in the case of an individual—$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.
49 Licensing requirement—scheduled activities (not premises-based)
(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—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or(b) in the case of an individual—$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.(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.
50 Timing of licensing of development requiring consent under EP&A Act
(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 Part 5.1 of that Act.
existing use has the same meaning as in Division 10 of Part 4 of the Environmental Planning and Assessment Act 1979.
(1) The issue of a licence in relation to integrated development within the meaning of section 91 of the Environmental Planning and Assessment Act 1979 is subject to Division 5 of Part 4 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.
52 Commencement of licensing requirements
(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.
Part 3.3 Issue, transfer and variation of licences
53 Application for issue of licence
(1) An application may be made to the appropriate regulatory authority for the issue of a licence.(2) An 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.
54 Application for transfer of licence
(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) An application for the transfer of a licence 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.
55 Grant or refusal of application
(1) The appropriate regulatory authority may grant or refuse an application for the issue or transfer of a licence. An application is granted by the issue or transfer of the licence concerned.(2) The appropriate regulatory authority must not refuse such an 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.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.
56 Premises to which licence applies
(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”.
(1) The appropriate regulatory authority may vary a licence (including the conditions of a licence).(2) A variation includes the attaching of a condition to a licence (whether or not any conditions have already been attached), the substitution of a condition, the omission of a condition or the amendment of a condition.(3) A licence may be varied on application by the holder of the licence or on the initiative of the appropriate regulatory authority.(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.
59 Restrictions on making applications
(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.
60 Requirement for further information
(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.
61 Reasons to be given for grant or refusal of certain licence applications
(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.
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.
64 Failure to comply with 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—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or(b) in the case of an individual—$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.(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) Application
This section extends to conditions to which the suspension, revocation or surrender of a licence is subject under section 81. For that purpose, a reference to the holder of the licence includes a reference to the former holder of the licence.
Part 3.5 Particular licence conditions
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.
66 Conditions requiring monitoring, certification or provision of information, and related offences
(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—$1,000,000, or(b) in the case of an individual—$250,000.(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:
• in the case of a corporation—$250,000, or• in the case of an individual—$120,000.(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.
67 Conditions for mandatory environmental audits
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.
68 Conditions requiring pollution studies and reduction programs
(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.
69 Conditions relating to schemes for economic measures and environmental monitoring programs
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).
70 Conditions for financial assurances
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.
71 Conditions for remediation work on premises
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.
72 Conditions for insurance cover
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.
73 Conditions to take effect later
(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).
74 Conditions for positive covenants
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.
75 Conditions relating to waste
(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.
76 Post-closure requirements for waste facilities or other licensed premises
(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.
Part 3.6 Duration and review of licences
(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) a notice of the review of each licence is to be published in a newspaper circulating throughout the State,(b) the notice is to be published not less than 1 month, and not more than 6 months, before the review of the licence is undertaken,(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.
Part 3.7 Suspension, revocation and surrender of licences
79 Suspension or revocation of licence by appropriate regulatory authority
(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 must not suspend or revoke a licence unless before doing so:(a) it has given notice to the holder of the licence 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 holder of the licence a reasonable opportunity to make submissions in relation to the proposed revocation or suspension, and(d) it has taken into consideration any such submissions by the holder of the licence.(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,(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 (as referred to in section 83).(6) No fees are refundable on the suspension or revocation of a licence.
(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)
81 Conditions of suspension, revocation or surrender
(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.
82 Minister may suspend or revoke licence if holder convicted of major pollution offence
(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).
(1) This section has effect in determining whether a person is a fit and proper person as referred to in section 45 (f) and section 79 (5) (f), but does not limit the generality of those sections.(2) The appropriate regulatory authority may take into consideration any or all of the following:(a) that the person has contravened any of the environment protection legislation or other relevant legislation, or has held a licence or other authority that has been suspended or revoked under any of the environment protection legislation or other relevant legislation,(b) that, if the person is a body corporate, a director of the body corporate:(i) has contravened any of the environment protection legislation or other relevant legislation, or has held a licence or other authority that has been suspended or revoked under any of the environment protection legislation or other relevant legislation, or(ii) is or has been the director of another body corporate that has contravened any of the environment protection legislation or other relevant legislation, or has held a licence or other authority that has been suspended or revoked under any of the environment protection legislation or other relevant legislation,(c) the person’s record of compliance with the environment protection legislation,(d) if the person is a body corporate, the record of compliance with the environment protection legislation of any director or other person concerned in the management of the body corporate,(e) whether, in the opinion of the appropriate regulatory authority, the management of the activities or works that are or are to be authorised, required or regulated under the relevant licence are not or will not be in the hands of a technically competent person,(f) whether, in the opinion of the appropriate regulatory authority, the person is of good repute, having regard to character, honesty and integrity,(g) if the person is a body corporate, whether, in the opinion of the appropriate regulatory authority, a director or other person concerned in the management of the body corporate is of good repute, having regard to character, honesty and integrity,(h) whether the person, in the previous 10 years, has been convicted in New South Wales or elsewhere of an offence involving fraud or dishonesty,(i) if the person is a body corporate, whether a director or other person concerned in the management of the body corporate has, in the previous 10 years, been convicted in New South Wales or elsewhere of an offence involving fraud or dishonesty,(j) whether the person, during the previous 3 years, was an undischarged bankrupt or applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounded with his or her creditors or made an assignment of his or her remuneration for their benefit,(k) if the person is an individual, whether he or she is or was a director or person concerned in the management of a body corporate that is the subject of a winding up order or for which a controller or administrator has been appointed during the previous 3 years,(l) if the person is a body corporate, whether the body corporate is the subject of a winding up order or has had a controller or administrator appointed during the previous 3 years,(m) whether the person has demonstrated to the EPA the financial capacity to comply with the person’s obligations under the licence or the proposed licence,(n) 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,(o) any other 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.
84 Date from which decision operates
(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)
(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.
86 Notice for breach of licensing requirements
(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—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or(b) in the case of an individual—$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.
87 Putrescible waste landfill sites—licensing arrangements
(1) This section applies to waste facilities:(a) that are required to be licensed under this Chapter, and(b) that are landfill sites (that is, they are used for the purpose of disposing of waste to land), and(c) that are used for the purposes of the disposal of putrescible waste (that is, waste that is food or animal matter, including dead animals or animal parts, or unstable or untreated biosolids).(2) More than one occupier can be required to hold a licence in respect of any such waste facility.(3) A licence in respect of any such waste facility may be granted to a person other than a public authority only if a public authority holds a separate licence granted in respect of the facility (in this section called a supervisory licence).(4) In issuing a supervisory licence, the appropriate regulatory authority is to impose conditions on the licence with respect to the following matters:(a) the types and volumes of waste received at the waste facility,(b) the design of the waste facility (being a waste facility established after the commencement of this section),(c) any matters the authority thinks necessary to facilitate the implementation of a waste strategy in force under the Waste Avoidance and Resource Recovery Act 2001.(5) (Repealed)(6) An application by a public authority for a supervisory licence must specify the arrangements under which the public authority has the capacity to exercise control over the waste facility with respect to the matters referred to in subsection (4).(7) The following things are specifically authorised by this Act for the purposes of the Trade Practices Act 1974 of the Commonwealth and the Competition Code of New South Wales:(a) anything done by the appropriate regulatory authority in exercising its functions under this section,(b) anything done by the occupier of a waste facility to which this section applies for the purposes of complying with the conditions of the occupier’s licence that are imposed by the appropriate regulatory authority under this section,(c) anything done by a public authority holding a supervisory licence referred to in this section for the purpose of complying with the conditions of the licence that are imposed by the appropriate regulatory authority under this section,but only if the thing is done before 1 July 2003.(8) Things authorised to be done by subsection (7) are authorised only to the extent (if any) that they would otherwise contravene Part IV of the Trade Practices Act 1974 of the Commonwealth or the Competition Code of New South Wales.
88 Contributions by licensee of waste facility
(1) This section applies to waste facilities that are required to be licensed under this Chapter, but it does not apply to a facility that the EPA determines is used solely for the purposes of re-using, recovering, recycling or processing waste other than liquid waste.(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—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or(b) in the case of an individual—$250,000 and, in the case of a continuing offence, a further penalty of $60,000 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.