Chapter 4 Environment protection notices
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.
90 Classification of environment protection notices
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.
91 Clean-up by occupiers or polluters
(1) Notices
The appropriate regulatory authority may, by notice in writing, do either or both of the following:(a) direct an 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,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.(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) Recovery by person given notice
If the person given a clean-up notice complies with the notice but was not the person who caused the 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 the pollution incident.(5) Offence
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) 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.
92 Clean-up by public authorities
(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.
93 Clean-up directions may be given orally
(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.
(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.
95 Meaning of environmentally unsatisfactory manner
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.
(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.
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—$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.
98 Action in event of failure to comply
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.
99 Commencement of operation of prevention notices or variations
(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.
(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.
(1) Application of section
This section applies where the EPA recommends to the Minister that a notice be given under this section because it is of the opinion that the emission or discharge of pollutants from (or within) any premises in which any 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 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,to cease carrying on the activity, or any specified aspect of it, for such period as is specified in the notice.(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.
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—$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.
103 Action in event of failure to comply
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 under section 91 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 notice in writing, require:(a) the occupier of the premises at or from which the authority reasonably suspects that the pollution incident occurred, or(b) the person who is reasonably suspected by the authority of having caused the pollution incident,or both, to pay all or any reasonable costs and expenses incurred by it in connection with the clean-up action.(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.
(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 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 the pollution or pollution incident.
106 Registration of compliance cost notices in relation to land
(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.
107 Charge on land subject to compliance cost notice
(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.
More than one notice under a provision of this Chapter may be given to the same person.
109 Extraterritorial application
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.
(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 modification of, or addition to, its terms and specifications.(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.
(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 an environment protection notice, or another person authorised by the person to carry it out, or(b) a public authority that is taking clean-up action under Part 4.2, or another person authorised by the authority to carry it out, or(c) a regulatory authority that is taking action under 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—$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.
113 False or misleading statements in reports
A person who in 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—$1,000,000, or(b) in the case of an individual—$250,000.