An Act to protect the environment; to replace other environment protection legislation; and for other purposes.

Chapter 1 Preliminary

1   Name of Act

This Act is the Protection of the Environment Operations Act 1997.

2   Commencement

This Act commences on a day or days to be appointed by proclamation.

3   Objects of Act

The objects of this Act are as follows:

(a)  to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development,

(b)  to provide increased opportunities for public involvement and participation in environment protection,

(c)  to ensure that the community has access to relevant and meaningful information about pollution,

(d)  to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following:

(i)  pollution prevention and cleaner production,

(ii)  the reduction to harmless levels of the discharge of substances likely to cause harm to the environment,

(iia)  the elimination of harmful wastes,

(iii)  the reduction in the use of materials and the re-use, recovery or recycling of materials,

(iv)  the making of progressive environmental improvements, including the reduction of pollution at source,

(v)  the monitoring and reporting of environmental quality on a regular basis,

(e)  to rationalise, simplify and strengthen the regulatory framework for environment protection,

(f)  to improve the efficiency of administration of the environment protection legislation,

(g)  to assist in the achievement of the objectives of the Waste Avoidance and Resource Recovery Act 2001.

4   Definitions

Expressions used in this Act have the meanings set out in the Dictionary at the end of this Act.

5   Scheduled activities

(1) Listing of activities
The activities listed in Schedule 1 are scheduled activities for the purposes of this Act.

(2) Limitations
If Schedule 1 so provides, a specified activity is a scheduled activity for the purposes of this Act only in specified circumstances, or only in specified areas or only under specified conditions.

(3) Change in listings
The regulations may amend or replace Schedule 1. The regulations may contain provisions of a savings or transitional nature consequent on the amendment or replacement of Schedule 1.

6   Appropriate regulatory authority

(1) EPA
The EPA is the appropriate regulatory authority for the purposes of this Act, except as provided by this section.

(2) Local councils and other local authorities
A local authority is the appropriate regulatory authority for non-scheduled activities in its area, except in relation to:

(a)  the exercise of functions under Chapter 3 (Environment protection licences), or

(b)  premises defined in an environment protection licence as the premises to which the licence applies, and all activities carried on at those premises, or

(c)  activities carried on by the State or a public authority, whether at premises occupied by the State or a public authority or otherwise, or

(d)  a matter for which a public authority (other than the local authority) is declared under subsection (3) to be the appropriate regulatory authority.

(3) Public authorities declared by regulation
A public authority is the appropriate regulatory authority for a matter for which it is declared to be the appropriate regulatory authority by the regulations (subject to such conditions or limitations as are specified in the regulations). The regulations under this subsection:

(a)  may declare a local authority to be the appropriate regulatory authority in respect of non-scheduled activities excluded under subsection (2), but

(b)  may not declare any public authority to be the appropriate regulatory authority for activities carried on by that public authority.

(4) Limitation to local area
A function conferred or imposed by or under this Act on a local authority, in its capacity as the appropriate regulatory authority or otherwise, may be exercised only in or in relation to the local authority’s area.

Note. The regulations have prescribed the Marine Parks Authority and certain other authorities as the appropriate regulatory authorities for certain non-scheduled activities in certain areas. By virtue of this Act, the marine authority is given jurisdiction in connection with noise control notices and noise abatement directions relating to vessels (see sections 263 and 275).

7   General relationship with other Acts

(1) Other Acts not affected
Nothing in this Act affects any of the provisions of any other Act or any statutory rules, or takes away any powers vested in any person or body by any other Act or statutory rules.

(2) This Act generally prevails
However (subject to subsection (3)):

(a)  this Act prevails over any other Act or statutory rule to the extent of any inconsistency, and

(b)  a regulation made under this Act prevails over any other statutory rule to the extent of any inconsistency.

(3) Marine Pollution Act 1987 prevails
The provisions of or made under the Marine Pollution Act 1987 (except Part 4), in their application to State waters within the meaning of that Act, prevail over this Act, to the extent of any inconsistency.

8   Notes

Notes in the text of this Act do not form part of this Act.

Chapter 2 Protection of the environment policies

Part 2.1 Introduction

9   Definitions

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.

10   Purpose of PEPs

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.

11   Contents of PEPs

(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.

Part 2.2 Draft policies

12   Preparation of draft PEP

(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.

13   General considerations in preparing draft PEP

(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.

Part 2.3 General procedure for preparing draft policies

14   Application of Part

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

15   EPA to give notice of intention to prepare draft PEP

(1)  If the EPA intends or is directed to prepare a draft policy, the EPA must publish a notice:

(a)  stating that the EPA intends or has been directed to prepare a draft policy, and

(b)  specifying the subject of the draft policy.

(2)  The notice must:

(a)  be published in the Gazette, and

(b)  also be published, on at least 2 occasions, in a newspaper circulating in the State, and

(c)  if it is intended that the policy will specifically affect only a particular region of the State—also be published, on at least 2 occasions, in a newspaper circulating in the region.

16   EPA to prepare draft PEP and impact statement

(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.

17   Public consultation on draft PEP and impact statement

(1)  Before a policy is made, the EPA must publish a notice:

(a)  stating how copies of the draft policy and the impact statement may be obtained, and

(b)  inviting submissions to the EPA on the draft policy, or on the impact statement, within a specified period.

The notice must be published at least 30 days after the day on which section 15 (2) has been fully complied with.

(2)  The notice must:

(a)  be published in the Gazette, and

(b)  also be published, on at least 2 occasions, in a newspaper circulating in the State, and

(c)  if it is intended that the policy will specifically affect only a particular region of the State—also be published, on at least 2 occasions, in a newspaper circulating in the region.

(3)  The period specified in the notice must end not less than 3 months after the day on which subsection (2) has been fully complied with.

18   Other consultation during preparation of draft PEP

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.

19   EPA to consider impact statement and submissions

(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.

20   Submission of draft PEP to Minister

(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.

Part 2.4 Special procedure for preparing draft policies

21   Application of Part

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

22   Directions

(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.

23   Effect of direction

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.

24   Submission of draft PEP to Minister

(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.

Part 2.5 Making policies

25   Recommendation for making PEP

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.

26   Making of PEP

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

Part 2.6 Interim policies

27   Interim PEPs

(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.

Part 2.7 Implementing policies

28   Implementing PEPs—action under this Act and other environment protection legislation

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.

29   Implementing PEPs—action under Environmental Planning and Assessment Act 1979

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 Director-General of the Department of Urban Affairs and Planning 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 117 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.

30   Implementing PEPs—action by public authorities

(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.

31   Discretions and functions of public authorities

(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.

32   Definition of “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.

Part 2.8 Miscellaneous

33   Amendment or repeal of PEPs

(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.

34   Publication and commencement of PEPs

(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.

35   Machinery matters for which PEPs may make provision

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.

36   PEPs not to create offences

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

37   Judicial notice and validity of PEPs

(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.

38   Failure to comply with procedural requirements

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.

39   Copies of PEPs to be available to public

(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.

40   Abandonment of draft PEP

(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.

41   Subordinate Legislation Act 1989 does not apply to PEPs

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

Chapter 3 Environment protection licences

Part 3.1 Introduction

42   Environment protection licences

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

43   Types of licences

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.

44   Integration of licensing

(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.

46   Operation of 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 under Part 3A of that Act.

existing use has the same meaning as in Division 10 of Part 4 of the Environmental Planning and Assessment Act 1979.

51   Integrated development

(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.

57   Licence fees

(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”.

58   Variation of licences

(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.

62   Copyright

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.

Part 3.4 Licence conditions

63   Conditions

(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

65   Part not exclusive

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 tradeable emission schemes, green offsets and other schemes involving economic measures

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,

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

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

77   Duration of licence

(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.

78   Review of licences

(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.

80   Surrender of 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).

Part 3.8 Miscellaneous

83   Fit and proper persons

(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)

85   Death of licensee

(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.

Chapter 4 Environment protection notices

Part 4.1 Preliminary

89   Definitions

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.

Part 4.2 Clean-up notices

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.

94   Fee

(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.

Part 4.3 Prevention notices

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.

96   Preventive action

(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.

97   Offence

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.

100   Fee

(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.

Part 4.4 Prohibition notices

101   Prohibition on activities

(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.

102   Offence

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.

Part 4.5 Compliance cost

104   Compliance cost notices

(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.

105   Recovery of amounts

(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.

Part 4.6 Miscellaneous

108   Multiple notices

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.

109A   (Repealed)

110   Revocation or variation

(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.

111   Power to enter land

(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.

112   Obstruction of persons

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.

Chapter 5 Environment protection offences

Part 5.1 Classification of offences

114   Classification of offences

(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.

Part 5.2 Tier 1 offences

115   Disposal of waste—harm to environment

(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.

(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.

116   Leaks, spillages and other escapes

(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.

117   Emission of ozone depleting substances

(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.

(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.

118   General defence for tier 1 offences

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.

119   Maximum penalty for tier 1 offences

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 $5,000,000 for an offence that is committed wilfully or $2,000,000 for an offence that is committed negligently, or

(b)  in the case of an individual—to a penalty not exceeding $1,000,000 or 7 years’ imprisonment, or both, for an offence that is committed wilfully or $500,000 or 4 years’ imprisonment, or both, for an offence that is committed negligently.

Part 5.3 Water pollution

120   Prohibition of pollution of waters

(1)  A person who pollutes any waters is guilty of an offence.

(2)  In this section:

pollute waters includes cause or permit any waters to be polluted.

121   Defence of authority conferred by regulation

(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.

122   Defence of authority conferred by licence

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.

123   Maximum penalty for water pollution offences

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 $1,000,000 and, in the case of a continuing offence, to a further penalty not exceeding $120,000 for each day the offence continues, or

(b)  in the case of an individual—to a penalty not exceeding $250,000 and, in the case of a continuing offence, to a further penalty not exceeding $60,000 for each day the offence continues.

Part 5.4 Air pollution

Division 1 General

124   Operation of plant (other than domestic plant)

The occupier of any premises who operates any plant in or on those premises in such a manner as to cause air pollution from those premises is guilty of an offence if the air pollution so caused, or any part of the air pollution so caused, 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.

125   Maintenance work on plant (other than domestic plant)

The occupier of any premises who carries out maintenance work on any plant in or on those premises in such a manner as to cause air pollution from those premises is guilty of an offence if the air pollution so caused, or any part of the air pollution so caused, is caused by the occupier’s failure to carry out that work in a proper and efficient manner.

126   Dealing with materials

(1)  The occupier of any premises who deals with materials in or on those premises in such a manner as to cause air pollution from those premises is guilty of an offence if the air pollution so caused, or any part of the air pollution so caused, 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.

127   Proof of causing pollution

To prove that air pollution was caused from premises, within the meaning of sections 124–126, it is sufficient to prove that air pollution was caused on the premises, unless the defendant satisfies the court that the air pollution did not cause air pollution outside the premises.

128   Standards of air impurities not to be exceeded

(1)  The occupier of any premises must not carry on any activity, or operate any plant, in or on the premises in such a manner as to cause or permit the emission at any point specified in or determined in accordance with the regulations of air impurities in excess of:

(a)  the standard of concentration and the rate, or

(b)  the standard of concentration or the rate,

      prescribed by the regulations in respect of any such activity or any such plant.

(2)  Where neither such a standard nor rate has been so prescribed, the occupier of any premises must carry on any activity, or operate any plant, in or on the premises by such practicable means as may be necessary to prevent or minimise air pollution.

(3)  A person who contravenes this section is guilty of an offence.

129   Emission of odours from premises licensed for scheduled activities

(1)  The occupier of any premises at which scheduled activities are carried on under the authority conferred by a licence must not cause or permit the emission of any offensive odour from the premises to which the licence applies.

(2)  It is a defence in proceedings against a person for an offence against this section if the person establishes that:

(a)  the emission is identified in the relevant environment protection licence as a potentially offensive odour and the odour was emitted in accordance with the conditions of the licence directed at minimising the odour, or

(b)  the only persons affected by the odour were persons engaged in the management or operation of the premises.

(3)  A person who contravenes this section is guilty of an offence.

130   Provisions prevail

(1)  Sections 124, 125 and 126 have effect despite anything contained in section 128 or 129.

(2)  Section 129 has effect despite anything contained in section 128.

131   Exclusion of residential premises

This Division does not apply to plant or materials, or the carrying on of an activity, in or on premises used only for residential purposes.

132   Maximum penalty for air pollution offences

A person who is guilty of an offence under this Division is liable, on conviction:

(a)  in the case of a corporation—to a penalty not exceeding $1,000,000 and, in the case of a continuing offence, to a further penalty not exceeding $120,000 for each day the offence continues, or

(b)  in the case of an individual—to a penalty not exceeding $250,000 and, in the case of a continuing offence, to a further penalty not exceeding $60,000 for each day the offence continues.

Division 2 Air pollution from fires

133   Prohibition by EPA of burning in open air or incinerators

(1)  This section applies if the EPA is of the opinion that weather conditions are such that the burning of fires in the open or in incinerators while those conditions persist will contribute or is likely to contribute to air pollution to such an extent that the making of an order under this section is warranted.

(2)  The EPA may, by order published in accordance with this section, prohibit, unconditionally or conditionally, the burning of fires in the open or in all or any specified classes of incinerators.

(3)  An order under this section has effect for such period (not exceeding 7 days) as is specified in the order, but may be revoked by a further order under this section.

(4)  An order under this section must be:

(a)  published in a daily newspaper circulating throughout the State not later than on the day on which the order is to take effect, or

(b)  broadcast by radio or television throughout the area of the State to which it relates not later than on the eve of the day on which the order is to take effect.

(5)  An order under this section may be limited in any way specified in the order, including:

(a)  to specified areas or classes of areas,

(b)  to specified persons or classes of persons,

(c)  to specified times or circumstances,

(d)  to specified purposes or classes of purposes.

(6)  An order under this section has effect even though it prohibits burning that is permitted by any regulation relating to the burning of fires.

134   Directions by authorised officers concerning fires

(1)  This section applies if an authorised officer is of the opinion that a fire is burning in or on any premises and:

(a)  the fire is prohibited by an order of the EPA under this Division or by the regulations, or

(b)  air pollution from the fire is injurious to the health of any person or is causing or is likely to cause serious discomfort or inconvenience to any person.

(2)  The authorised officer may, by notice in writing given to:

(a)  the occupier of the premises or person apparently in charge of the premises, or

(b)  the person apparently in charge of the fire,

      direct the occupier or other person to whom the notice is given to extinguish the fire immediately.

(3)  The authorised officer may, by that notice, also direct the occupier or other person not to light or maintain a similar fire in or on the premises during such period (not exceeding 48 hours) as is specified in the notice.

(4)  A notice under this section may be revoked by a further notice under this section.

135   Offence

A person who, without reasonable excuse, does not comply with an order or notice under this Division is guilty of an offence.

Maximum penalty: 30 penalty units.

Division 3 Domestic air pollution

135A   Definitions

In this Division:

chimney means a chimney, flue, pipe or other similar means of conveying smoke emitted inside residential premises to the outside.

excessive smoke means the emission of a visible plume of smoke from a chimney for a continuous period of not less than 10 minutes, including a period of not less than 30 seconds when the plume extends at least 10 metres from the point at which the smoke is emitted from the chimney.

residential premises means premises used wholly or partly as a residence.

135B   Smoke abatement notices

(1)  If it appears to an authorised officer of an appropriate regulatory authority that is a local authority that excessive smoke is being, or has at any time within the past 7 days been, emitted from a chimney on or in residential premises, the officer may give the person whom the officer believes to be the occupier of the premises a smoke abatement notice directing the person to ensure that excessive smoke is not emitted from the chimney at any time after 21 days following the giving of the notice.

(2)  A smoke abatement notice is to be in writing.

(3)  A smoke abatement notice ceases to have effect 6 months after the day on which it is given or when it is revoked, whichever occurs first.

(4)  This section does not apply to a chimney that is in or on an incinerator or is used only in relation to smoke originating from outside a residence.

135C   Contravention of smoke abatement notices

(1)  A person to whom a smoke abatement notice has been given must not, without reasonable excuse, fail to comply with the notice while the notice remains in force.

Maximum penalty: 30 penalty units.

(2)  A smoke abatement notice does not prevent the emission of smoke that is not excessive smoke.

(3)  In any proceedings for an offence under this section, a document signed by the authorised officer of an appropriate regulatory authority who issued a smoke abatement notice certifying that the officer had, at a specified time and place:

(a)  observed a plume of smoke being emitted from a chimney on or in premises specified in the certificate for a continuous period of not less than 10 minutes, and

(b)  observed during that period a plume of smoke extending at least 10 metres from the point at which the smoke was emitted from the chimney for a period of not less than 30 seconds,

      is evidence of the matters so certified, unless the contrary is proved.

135D   Revocation of smoke abatement notices

A smoke abatement notice may be revoked by the appropriate regulatory authority for which the person who gave the notice is an authorised officer.

Part 5.5 Noise pollution

136   Sale of articles emitting more than prescribed noise

(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.

137   Sale of articles required to be fitted with noise control equipment

(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.

138   Defence—sale of articles

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.

139   Operation of plant

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.

140   Dealing with materials

(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.

141   Maximum penalty for noise offences

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 $1,000,000 and, in the case of a continuing offence, to a further penalty not exceeding $120,000 for each day the offence continues, or

(b)  in the case of an individual—to a penalty not exceeding $250,000 and, in the case of a continuing offence, to a further penalty not exceeding $60,000 for each day the offence continues.

Part 5.6 Land pollution and waste

Division 1 Preliminary

142   Definition

In this Part:

land does not include waters.

Division 2 Land pollution

142A   Pollution of land

(1)  A person who pollutes land 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)  In this section:

pollute land includes cause or permit any land to be polluted.

142B   Defence of authority conferred by regulation

(1)  The regulations may, for the purposes of this Division, regulate the carrying out of an activity that pollutes land.

(2)  It is a defence in proceedings for an offence under this Division 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.

142C   Defence of authority conferred by licence

It is a defence in proceedings for an offence under this Division 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 land were not contravened.

142D   Defences relating to pesticides and fertilisers and other substances

(1)  It is a defence in proceedings for an offence under this Division if the person establishes that the substance placed in or on, or otherwise introduced into or onto, land is any of the following:

(a)  a pesticide (within the meaning of the Pesticides Act 1999) placed in or on, or otherwise introduced into or onto the land, in the course of being used within the meaning of that Act,

(b)  a fertiliser, liming material or trace element product within the meaning of the Fertilisers Act 1985 that may lawfully be sold as such,

(c)  non-hazardous agricultural or crop waste, including stock feed made solely from such waste,

(d)  manure,

(e)  virgin excavated natural material,

(f)  biosolids or any other substances prescribed by the regulations for the purposes of this section.

(2)  Words and expressions used in this section have the meanings prescribed by the regulations.

142E   Defences relating to unlicensed landfills

It is a defence in proceedings for an offence under this Division if the person establishes that a substance was placed in or on, or otherwise introduced into or onto, land that was an unlicensed landfill site notified to the EPA in accordance with, and operated in accordance with, any requirements of the regulations.

Division 3 Waste offences

143   Unlawful transporting or depositing of waste

(1) Offence
If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported:

(a)  the person, and

(b)  if the person is not the owner of the waste, the owner,

      are each 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.

(2) Proof of lawfulness
In any proceedings for an offence under this section the defendant bears the onus of proving that the place to which the waste was transported can lawfully be used as a waste facility for that waste.

(3) Defence—owner of waste
It is a defence in any proceedings against an owner of waste for an offence under this section if the owner did not transport the waste and establishes:

(a)  that the commission of the offence was due to causes over which the owner had no control, and

(b)  that the owner took reasonable precautions and exercised due diligence to prevent the commission of the offence.

(3A) Defence—approved notice
It is a defence in any proceedings for an offence under this section if the defendant establishes that:

(a)  an approved notice was, at the time of the alleged offence, given to the defendant by the owner or occupier of the place to which the waste was transported or was displayed at the place, and

(b)  the approved notice stated that the place could lawfully be used as a waste facility for the waste, and

(c)  the defendant had no reason to believe that the place could not lawfully be used as a waste facility for the waste.

(3B)  However, it is not a defence in such proceedings for the defendant to establish that the defendant relied on the advice (other than advice in the form of an approved notice) given by the owner or occupier concerned to the effect that the place could, at the time of the alleged offence, be lawfully used as such a waste facility.

(3C) Defence—waste not deposited
It is a defence in any proceedings for an offence under this section if the defendant establishes that the waste transported by the defendant was not deposited by the defendant or any other person at the place to which it was transported.

(4) Definitions
In this section:

approved notice means a notice, in a form approved by the EPA:

(a)  stating that the place to which the notice relates can lawfully be used as a waste facility for the waste specified in the notice, and

(b)  that contains a certification by the owner or occupier of the place that the statement is correct.

owner of waste includes, in relation to waste that has been transported, the person who was the owner of the waste immediately before it was transported.

144   Use of land as waste facility without lawful authority

(1)  A person who is the owner or occupier of any land and who uses the land, or causes or permits the land to be used, as a waste facility without lawful authority 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)  In any proceedings for an offence under this section the defendant bears the onus of proving that there is lawful authority to use the land concerned as a waste facility.

144AA   False or misleading information about waste

(1)  A person who supplies information, or causes or permits information to be supplied, that is false or misleading in a material respect about waste to another person in the course of dealing with the waste is guilty of an offence.

Maximum penalty:

(a)  in the case of a corporation—$250,000, or

(b)  in the case of an individual—$120,000.

(2)  It is a defence in any proceedings against a person for an offence under this section if the person establishes that the person took all reasonable steps to ensure that the information was not false or misleading in a material respect.

(3)  In this section, information is taken to be supplied to a person in the course of dealing with waste if it is supplied:

(a)  in the course of an activity relating to the sale or disposal of waste, or

(b)  in the course of an activity relating to the storage, transport, handling, deposit, transfer, processing, recycling, recovery, re-use or use of the waste.

(4)  In this section, information about waste means information about any of the following:

(a)  the type, classification, characteristics, composition or quantity of the waste,

(b)  the actual or proposed storage, transport, handling, deposit, transfer, disposal, processing, recycling, recovery, re-use or use of the waste,

(c)  the hazards or potential harm to the environment or human health associated with the waste or an activity referred to in paragraph (b).

(5)  In this section, information includes a record containing information.

(6)  Proceedings for an offence against this section may be instituted only by the EPA.

Part 5.6A Littering

144A   Definitions

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.

145   Littering generally

(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: 20 penalty units.

(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.

145A   Aggravated littering

(1) Aggravated littering
A person is guilty of the offence of aggravated littering under this section if the person commits an offence under section 145 in circumstances of aggravation.

Maximum penalty (instead of any penalty under section 145):

•  in the case of a corporation—50 penalty units, or

•  in the case of an individual—30 penalty units.

(2) Circumstances of aggravation
For the purposes of this section, circumstances of aggravation means circumstances in which the litter deposited by the alleged offender:

(a)  caused or contributed to appreciable danger or harm to any persons, animals, premises or property, or

(b)  was reasonably likely to cause or contribute to such danger or harm (whether or not any such danger or harm was actually caused),

      because of the volume or kind of litter deposited, or the manner in which it was deposited, or the place in or on which it was deposited.

(3)  Without limiting subsection (2), a reference in that subsection to litter includes a reference to a lit cigarette.

(4)  For the purposes of this section, circumstances of aggravation also means circumstances in which the litter deposited by the alleged offender comprised or included a syringe. It is not necessary to establish, in relation to those circumstances, the matters referred to in subsection (2).

(5) Aggravation not proved
If the court is satisfied that a person charged with the offence of aggravated littering is not guilty of that offence but is satisfied on the evidence that the person is guilty of an offence under section 145, the court may find the person guilty of the offence under that section, and the person is liable to punishment accordingly.

(6) Definition
In this section:

syringe means a hypodermic syringe, and includes anything designed for use or intended to be used as part of such a syringe, and also includes a needle designed for use or intended to be used in connection with such a syringe.

146   Owners and drivers of motor vehicles and trailers involved in littering

(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 verified by statutory declaration 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 28 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 28 days after service of the summons or court attendance notice for the offence.

(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.

146A   Depositing of advertising material

(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.

146B   Advertising material not to be placed in or on vehicles

(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.

146C   Offence to cause or ask person to commit offence

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.

146D   Littering reports

(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.

146E   Restrictions on release of balloons

(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.

Part 5.7 Duty to notify pollution incidents

147   Meaning of material harm to the environment

(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.

148   Pollution incidents causing or threatening material harm to be notified

(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, as soon as practicable after the person becomes aware of the incident, notify the appropriate regulatory 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, as soon as practicable 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 the appropriate regulatory 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, as soon as practicable after being notified or otherwise becoming aware of the incident, notify the appropriate regulatory 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, as soon as practicable after the occupier becomes aware of the incident, notify the appropriate regulatory 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, as soon as practicable, 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) Odour not required to be reported
This section does not extend to a pollution incident involving only the emission of an odour.

149   Manner and form of notification

(1)  If the regulations prescribe the manner or form of notifying pollution incidents under this Part, 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 this Part.

150   Relevant information to be given

The relevant information about a pollution incident required under this Part 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,

(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,

(f)  other information prescribed by the regulations.

151   Incidents not required to be reported

(1)  A person is not required to notify a pollution incident under this Part if the person is aware that the incident has already come to the notice of the person or authority required to be notified.

(2)  A person is not required to notify a pollution incident under this Part 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.

152   Offence

A person who contravenes this Part 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.

153   Incriminating information

(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.

Part 5.8 Motor vehicles

Division 1 Preliminary

154   Definitions

(1)  In this Part:

authorised officer means an authorised officer appointed by the EPA.

excessive air impurities—see subsection (2).

mass—see subsection (3).

petrol includes a mixture of petrol and any other substance, other than a prescribed mixture or a mixture of a prescribed class or description.

prescribed anti-pollution device means a device specified or described in the regulations and described there as being a device designed or intended to minimise air pollution caused by motor vehicles.

unleaded petrol means petrol:

(a)  that contains:

(i)  no lead or not more than the prescribed mass of lead per litre, and

(ii)  no phosphorus or not more than the prescribed mass of phosphorus per litre, and

(b)  that has a research octane number within the prescribed range.

(2)  For the purposes of this Part, a motor vehicle emits excessive air impurities if:

(a)  when in operation, it emits as determined in accordance with the regulations, air impurities in excess of the standard of concentration and the rate (or the standard of concentration or the rate) prescribed in respect of the class of motor vehicles to which the motor vehicle belongs, or

(b)  when tested in the prescribed manner, it emits air impurities in excess of the amount per test prescribed in respect of the class of motor vehicles to which the motor vehicle belongs.

(3)  For the purposes of this Part, the mass of an element contained in a specific volume of a substance may be determined by reference to the mass of the element present as a constituent of a compound contained in that volume.

Division 2 Sale and maintenance of motor vehicles

155   Sale of motor vehicles

A person who, whether on the person’s own behalf or on behalf of another person, sells a motor vehicle is guilty of an offence if it emits excessive air impurities.

Maximum penalty:

(a)  in the case of a corporation—$1,000,000, or

(b)  in the case of an individual—$250,000.

156   Sale of motor vehicles without anti-pollution devices

A person who, whether on the person’s own behalf or on behalf of another person, sells a motor vehicle is guilty of an offence if:

(a)  the regulations require motor vehicles of the class to which it belongs to be fitted with prescribed anti-pollution devices, and

(b)  the vehicle is not fitted in the prescribed manner with such a device.

Maximum penalty:

(a)  in the case of a corporation—$1,000,000, or

(b)  in the case of an individual—$250,000.

157   Adjustment etc of anti-pollution devices and motor vehicles

(1)  A person who:

(a)  removes, disconnects or impairs an anti-pollution device fitted to a motor vehicle, or

(b)  causes or permits any such device to be removed, disconnected or impaired,

      is guilty of an offence.

(2)  A person who:

(a)  adjusts or modifies an anti-pollution device fitted to a motor vehicle, or

(b)  adjusts or modifies any part of a motor vehicle, or

(c)  causes or permits any such device or part to be adjusted or modified,

      is guilty of an offence if the adjustment or modification results in the emission of excessive air impurities by the motor vehicle.

(3)  In this section:

anti-pollution device means a prescribed anti-pollution device, or any other device that is designed to minimise air pollution.

Maximum penalty:

(a)  in the case of a corporation—$1,000,000, or

(b)  in the case of an individual—$250,000.

158   Service or repair of motor vehicles

A person who:

(a)  services or repairs a motor vehicle, or

(b)  causes or permits a motor vehicle to be serviced or repaired,

in a manner prohibited by the regulations 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.

159   Sale of motor vehicles not serviced, maintained or adjusted as prescribed

A person who, whether on the person’s own behalf or on behalf of another person, sells a motor vehicle is guilty of an offence if:

(a)  the regulations require motor vehicles of the class to which it belongs to be serviced, maintained or adjusted in a specified manner, and

(b)  the vehicle has not been serviced, maintained or adjusted in that manner.

Maximum penalty:

(a)  in the case of a corporation—$1,000,000, or

(b)  in the case of an individual—$250,000.

160   Defences

(1) Sale of motor vehicle
It is a defence to a prosecution for an offence under section 155, 156 or 159 if the defendant proves:

(a)  that the offence was committed by the defendant in the course of employment by another person, or

(b)  that upon, or in the event of, the sale of the motor vehicle, the defendant received or was to receive remuneration, by way of commission, from a person other than the owner of the motor vehicle.

(2) Sale of vehicle emitting excessive air impurities
It is a defence to a prosecution for an offence under section 155 if the defendant proves:

(a)  that the defendant took all reasonable and practicable steps to prevent the commission of the offence, and

(b)  that no visible air impurities were emitted by the motor vehicle.

(3) Removal, adjustment, modification etc resulting in excessive air impurities
It is a defence to a prosecution for an offence under section 157 if the defendant proves that the removal, disconnection, impairment, adjustment or modification was done:

(a)  in order to service, repair or replace the anti-pollution device or the part of the motor vehicle concerned, or to improve its efficiency with respect to minimising air pollution, or

(b)  as a temporary measure, in order to facilitate the service or repair of a motor vehicle, or

(c)  in order to facilitate the use of a motor vehicle for motor racing or off-road motor sport (being a motor vehicle that immediately before that removal or other action was not registrable under the Road Transport (Vehicle Registration) Act 1997) and that the vehicle is to be used in that condition only in the competition itself.

(4) Adjustment or modification resulting in excessive air impurities
It is a defence to a prosecution for an offence under section 157 (2) if the defendant proves that, at the time the offence was committed:

(a)  the defendant did not know and could not reasonably be expected to have known that the motor vehicle emitted excessive air impurities, and

(b)  no visible air impurities were emitted by the motor vehicle.

(5) Sale of vehicle required to be serviced as prescribed
It is a defence to a prosecution for an offence under section 159 if the defendant proves that the defendant took all reasonable steps to ensure that the motor vehicle was serviced, maintained or adjusted as required by the regulations.

(6) Sale of vehicle for use in competitive sport
It is a defence to a prosecution for an offence under section 155 or 156, if the defendant proves that the motor vehicle:

(a)  was constructed or has been modified solely for use in motor racing or off-road motor sport, and

(b)  was not registrable under the Road Transport (Vehicle Registration) Act 1997.

161   Notices

(1) Notice to repair
An authorised officer may, by notice in writing given to the owner of a motor vehicle which the officer reasonably suspects emits excessive air impurities, direct the owner to cause it to be serviced or repaired, within a specified period of time, so that it no longer emits excessive air impurities.

(2) Notice regarding anti-pollution devices
An authorised officer may, by notice in writing given to the owner of a motor vehicle, direct the owner:

(a)  if the vehicle is not fitted with every prescribed anti-pollution device required by the regulations to be fitted to it—to cause it to be fitted with specified prescribed anti-pollution devices, or

(b)  if any device fitted to the vehicle (being a prescribed anti-pollution device or any other device designed to minimise air pollution) has been removed, disconnected or impaired—to cause the device to be refitted, reconnected or repaired, or

(c)  if any such device or any part of the vehicle has been so adjusted or modified that, as a result, the vehicle emits excessive air impurities—to cause the device or part to be readjusted or restored,

      within a specified period of time.

(3) Revoking or varying notice
A notice given under this section in respect of a motor vehicle may be revoked or varied by an authorised officer by further notice in writing given to the owner of the vehicle.

(4) Offence
A person who uses a motor vehicle in respect of which a notice has been given under this section, or causes or permits it to be used, is guilty of an offence if at that time:

(a)  the person knows that the notice has been given, and

(b)  the notice has not been revoked, and

(c)  the period of time specified in the notice has expired, and

(d)  the notice has not been complied with.

Maximum penalty: 60 penalty units.

(5) Affixing label to vehicle
If an authorised officer has given a notice under this section in respect of a motor vehicle, the authorised officer may affix to the windscreen of the vehicle or otherwise conspicuously affix to the vehicle a prescribed label.

(6) Driving permitted for limited purposes
A motor vehicle may be driven to a place for the purpose of:

(a)  having the work required by a notice under this section carried out, or

(b)  having a label affixed under this section removed by (or with the authority of) an authorised officer after the required work has been done or the notice has been revoked, or

(c)  having the vehicle inspected by an authorised officer or a person authorised by such an officer, or

(c1)  having the vehicle tested or inspected by a person approved by the EPA for the purposes of section 207 (2) (c), or

(d)  returning from having any such work done or vehicle tested or inspected,

      without contravening subsection (4).

(7) Removal of label
A person (other than an authorised officer or person acting with the authority of such an officer) who removes a prescribed label affixed to a motor vehicle under this section or obliterates or interferes with any such label is guilty of an offence.

Maximum penalty: 60 penalty units.

162   Minister’s power to prohibit use of motor vehicles in certain circumstances

(1) Ministerial orders
The Minister may, by written order, prohibit the use of all or any class of motor vehicles, in any area specified in the order and at all times, or during particular times, as may be so specified.

(2) Purpose of order
The Minister may make such an order if satisfied that it is warranted in order to prevent or minimise harm to the environment or injury to public health.

(3) Period of operation of order
Any such order has effect:

(a)  on its publication in such manner as may be specified in the regulations, and

(b)  for such period as may be specified in the order or, if no period is so specified, until it is revoked.

(4) Publication of order
The regulations may provide for the publication of any such order by means of a newspaper or television, by the display of notices or by any other method specified in the regulations.

(5) Offence
A person who contravenes any such order 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.

Division 3

163, 164(Repealed)

Division 4 Registration of motor vehicles

165   Suspension of registration

(1)  The EPA may, by notice in writing to the owner of the motor vehicle, suspend the registration of a motor vehicle under the Road Transport (Vehicle Registration) Act 1997:

(a)  if the motor vehicle has not been presented for inspection in accordance with the requirements of a notice under this Part or of any other provision of or made under this Act, or

(b)  if the motor vehicle is in such a condition that its sale or use in that condition would constitute an offence under this Act or the regulations.

(2)  The EPA may remove any such suspension if satisfied, after inspecting or testing the motor vehicle, that the sale or use of the motor vehicle would no longer constitute an offence under this Act or the regulations.

(3)  The EPA must give written notice of any suspension, or removal of suspension, to the Roads and Traffic Authority.

(4)  The suspension of registration of a motor vehicle takes effect when notice of the suspension is given to the owner of the motor vehicle or, if a later time is specified in the notice, at that later time.

(5)  The suspension of registration of a motor vehicle does not have effect while the vehicle is being taken to a place:

(a)  where repairs or other work required to comply with the requirements of a notice under this Part or of any other provision of or made under this Act are to be carried out, or

(b)  for the purpose of its being inspected or tested by (or with the authority of) an authorised officer,

      or is being taken directly from any such place to the place where the vehicle is usually kept.

(6)  While the registration of a motor vehicle is suspended under this section, the motor vehicle is taken, for the purposes of this Act, the Road Transport (Vehicle Registration) Act 1997 and any other Act, not to be registered under that Act.

166   Prohibition on registration

(1)  The EPA, by notice in writing to the Roads and Traffic Authority:

(a)  may prohibit the registration under the Road Transport (Vehicle Registration) Act 1997 of a particular motor vehicle if it is satisfied that the motor vehicle is in such a condition that the sale or use of the motor vehicle in that condition would constitute an offence under this Act or the regulations, and

(b)  may remove any such prohibition if, after inspecting or testing the motor vehicle concerned, it is satisfied that the motor vehicle is no longer in such a condition.

(2)  The EPA must give written notice of any prohibition, or removal of prohibition, to the owner of the motor vehicle.

Part 5.9 General offences

167   Control equipment

(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—$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.

Note. control equipment is defined in the Dictionary.

168   Ancillary offences

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.

169   Offences by corporations

(1)  If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, 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.

(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)  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.

(5)  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.

170   Extra-territoriality

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.

Chapter 6 Environmental audits

Part 6.1 Preliminary

171   Relationship of this Chapter to other provisions

(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.

172   Nature of environmental audit

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.

173   Accreditation and regulation of environmental auditors

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.

Part 6.2 Mandatory environmental audits

174   Conditions for mandatory environmental audits

(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.

175   Circumstances in which mandatory environmental audit can be imposed

Conditions requiring the undertaking of a mandatory environmental audit may only be imposed if the appropriate regulatory authority reasonably suspects:

(a)  that the holder of the licence has on one or more occasions contravened this Act, the regulations or the conditions of the licence, and

(b)  that the contravention or contraventions have caused, are causing or are likely to cause, harm to the environment.

176   Certification of audit report

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.

177   Offences

(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.

(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.

(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.

(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.

(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:

•  in the case of a corporation—$250,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or

•  in the case of an individual—$120,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

178   Self-incriminatory information not exempt

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.

179   Use of information

(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).

Part 6.3 Voluntary environmental audits

180   Nature of voluntary environmental audit

(1)  A voluntary environmental audit is an environmental audit commissioned or carried out or being carried out voluntarily, whether or not in relation to activities licensed under this Act.

(2)  An environmental audit is not voluntary if there is a contemporaneous requirement for a mandatory environmental audit in relation to the same or substantially the same activity.

181   Protected documents

(1)  Documents prepared for the sole purpose of a voluntary environmental audit are protected documents for the purposes of this Act.

(2)  Such documents include the final report of the audit and any documents prepared during the course of the audit, so long as the documents are prepared for the sole purpose of the audit.

(3)  Without affecting the generality of the above, documents are not protected if they are prepared wholly or partly in connection with monitoring that is required by any conditions attached to a licence or by an environment protection notice.

182   Nature of protection

(1)  A protected document:

(a)  is not admissible in evidence against any person in any proceedings connected with the administration or enforcement of the environment protection legislation, and

(b)  may not be inspected, copied, seized or otherwise obtained by the EPA, any other regulatory authority, any authorised officer or any other person for any purpose connected with the administration or enforcement of the environment protection legislation,

      and the EPA or any such authority, officer or other person may not, for any such purpose, require a person to answer any question or provide any information about the existence of the document or about what it contains.

(2)  The onus of establishing that a document is a protected document lies on the person asserting that it is protected.

(3)  A court may inspect any document that is claimed to be a protected document for the purpose of determining whether it is or is not a protected document.

(4)  The regulations may prescribe procedures for making and determining claims that a document is a protected document.

183   Lifting of protection

(1)  Documents prepared in relation to a voluntary environmental audit cease to be protected if the person asserting or relying on the protection uses or relies on (or attempts to use or rely on) the whole or any part of one or more of the documents, whether directly or indirectly, in any proceedings connected with the administration or enforcement of the environment protection legislation.

(2)  This section does not apply where the person is using or relying on (or attempting to use or rely on) a document for the purpose of establishing that the document is protected.

Chapter 7 Investigation

Part 7.1 Preliminary

184   Purposes for which powers under Chapter may be exercised

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.

185   Effect on other functions

(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.

186   Extension of Chapter to other environment protection legislation

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,

(b)  Ozone Protection Act 1989 and the regulations under that Act,

(b1)  Pesticides Act 1999 and the regulations under that Act,

(b2)  Radiation Control Act 1990 and the regulations under that Act,

(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.

Part 7.2 Authorised officers and enforcement officers

187   Appointment of authorised officers

(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.

188   Scope of authority

(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.

189   Identification

(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.

189A   Powers of enforcement officers

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.

Part 7.3 Powers to require information or records

190   Application of Part

This Part applies whether or not a power of entry under Part 7.4 is being or has been exercised.

191   Requirement to provide information and records (EPA)

(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.

192   Requirement to provide information and records (other regulatory authorities)

(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.

193   Requirement to provide information and records (authorised officers)

(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.

194   Manner, time etc for compliance

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.

195   Provisions relating to records

(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.

Part 7.4 Powers of entry and search of premises

196   Powers of authorised officers to enter premises

(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

(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 in any other manner.

(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.

197   Entry into residential premises only with permission or warrant

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.

198   Powers of authorised officers to do things at premises

(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 that the authorised officer has reasonable grounds for believing is connected with an offence against this Act or the regulations,

(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.

198A   Power to disable intruder alarms

(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.

199   Search warrants

(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.

199A   Authorised officers may request assistance

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.

200   Assistance to be given to authorised officers

(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.

201   Care to be taken

In the exercise of a power of entering or searching premises under this Part, the authorised officer must do as little damage as possible.

202   Compensation

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.

Part 7.5 Powers to question and to identify persons

203   Power of authorised officers to require answers

(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.

203A   Recording of evidence

(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.

204   Power of authorised officers to demand name and address

(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 authorised officer within the meaning of the Criminal Procedure Act 1986 to be dealt with according to law.

(4) Bail
A Magistrate or authorised officer before whom a person is taken under subsection (3) may grant the person bail in accordance with the Bail Act 1978 as if the person were accused of an offence.

(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.

Part 7.6 Powers with respect to vehicles, vessels and other articles

205   Definitions

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, to a marine park ranger appointed under section 35A of the Marine Parks Act 1997 authorised by the Marine Parks Authority for the purposes of those sections.

205A   Application of Part

Nothing in this Part limits the functions that may be exercised under any other Part of this Chapter.

206   Power to inspect and test

(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.

207   Power to require articles to be tested or inspected

(1)  An authorised officer may, by notice in writing, require the owner or person in possession of an article specified in the notice to have the article tested or inspected, within the time so specified, for the purpose of determining whether the article complies with the requirements of this Act or the regulations.

(2)  Any such notice may require the article:

(a)  to be tested or inspected at a specified place (being a place within 80 kilometres of the owner’s or person’s residence or place of business), or

(b)  to be tested or inspected by or in the presence of an authorised officer, or

(c)  to be tested or inspected at a place approved by the EPA by a person approved by the EPA.

(3)  Any such notice may be revoked or varied by a further notice given by an authorised officer.

(4)  The regulations may make provision for or with respect to the approval by the EPA of:

(a)  the places at which articles are to be tested or inspected for the purposes of this section, and

(b)  the persons who may carry out any such testing or inspection.

(5)  Without limiting subsection (4), the regulations may make provision for or with respect to the following:

(a)  the issue, transfer, conditions, variation, surrender, review, suspension or revocation of an approval (including applications for the issue, transfer, variation or surrender of approvals) for the purposes of this section,

(b)  the maximum fee that may be charged with respect to the testing or inspection of an article under subsection (2) (c).

208   Stopping of vehicles and vessels for inspection or testing

(1)  The driver or person in charge of a vehicle or vessel that is being used in any place must, for the purpose of enabling an authorised officer to inspect or test it under this Part, comply with any reasonable direction by an authorised officer:

(a)  to stop the vehicle or vessel (being a direction given by displaying a sign or by any other reasonable method), or

(b)  relating to facilitating the inspection or testing of the vehicle or vessel by an authorised officer, or

(c)  to move the vehicle or vessel to a suitable place for inspection or testing.

(2)  If a vehicle or vessel has been stopped in compliance with such a direction (other than a direction to move the vehicle or vessel to a suitable place for inspection or testing at a later time), inspection and testing of it under this section must be carried out:

(a)  at or as near as practicable to the place where the direction to stop the vehicle or vessel is given, and

(b)  as soon as practicable, and in any case within one hour, after the vehicle or vessel is stopped in accordance with the direction.

(2A)  If a direction is given to move a vehicle or vessel to a suitable place for inspection or testing and the inspection or testing is not to take place at the time, the direction must be given by notice in writing specifying the time, date and place for the inspection or testing.

(3)  The maximum penalty for an offence under section 211 in connection with a requirement under this section is 30 penalty units despite anything to the contrary in that section.

(4)  In this section, vehicle includes aircraft.

209   Power to seize articles (other than vehicles or vessels) to test for noise

(1)  An authorised officer may take possession of an article (other than a vehicle or vessel) and take it to a place approved by the EPA for the purpose of measuring its noise level or its noise emission characteristics.

(2)  An authorised officer who takes possession of an article under this section must provide the person from whom it is taken with a receipt that:

(a)  specifies the make, model and serial number of the article, or any other information that will identify the article, and

(b)  specifies the time and date of issue of the receipt, and

(c)  specifies a date (being a date not more than 21 days after the date of issue) on or before which the article will be returned, and

(d)  is signed by the authorised officer issuing it.

(3)  The authorised officer must return the article to its owner, or to the person from whose possession it was taken, on or before the date specified in the receipt for its return.

210   Power to require information about articles

The EPA may, by notice under Part 7.3, require:

(a)  the owner of an article, or

(b)  the person by whom articles of a specified class or description were manufactured, assembled, imported, sold or supplied for sale,

to furnish it with information relating to any such article.

Part 7.7 General

211   Offences

(1)  A person who, without lawful excuse, neglects or fails to comply with a requirement made of the person under this Chapter is guilty of an offence.

(2)  A person who furnishes any information or does any other thing in purported compliance with a requirement made under this Chapter, knowing that it is false or misleading in a material respect is guilty of an offence.

(3)  A person who wilfully delays or obstructs an authorised officer in the exercise of the authorised officer’s powers under this Chapter is guilty of an offence.

(4)  A person who impersonates an authorised officer is guilty of an offence.

Maximum penalty (subject to sections 204 and 208):

(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.

212   Provisions relating to requirements to furnish records, information or answer questions

(1) Warning to be given on each occasion
A person is not guilty of an offence of failing to comply with a requirement under this Chapter to furnish records or information or to answer a question unless the person was warned on that occasion that a failure to comply is an offence.

(2) Self-incrimination not an excuse
A person is not excused from a requirement under this Chapter to furnish records or information or to answer a question on the ground that the record, information or answer might incriminate the person or make the person liable to a penalty.

(3) Information or answer not admissible if objection made
However, any information furnished or answer given by a natural person in compliance with a requirement under this Chapter is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Chapter) if:

(a)  the person objected at the time to doing so on the ground that it might incriminate the person, or

(b)  the person was not warned on that occasion that the person may object to furnishing the information or giving the answer on the ground that it might incriminate the person.

(4) Records admissible
Any record furnished by a person in compliance with a requirement under this Chapter is not inadmissible in evidence against the person in criminal proceedings on the ground that the record might incriminate the person.

(5) Further information
Further information obtained as a result of a record or information furnished or of an answer given in compliance with a requirement under this Chapter is not inadmissible on the ground:

(a)  that the record or information had to be furnished or the answer had to be given, or

(b)  that the record or information furnished or answer given might incriminate the person.

(6) Requirement to state name and address
This section extends to a requirement under this Chapter to state a person’s name and address.

212A   Revocation or variation

(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:

(a)  the authority that gave the notice, or

(b)  the authorised officer who gave the notice, or

(c)  another authorised officer who is a member of staff of the authority that appointed the officer who gave the notice.

212B   Extraterritorial application

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

212C   Actions by incorrect regulatory authority

(1)  This section applies if a regulatory authority or an authorised officer of the authority exercises functions under this Act or the regulations relating to an activity or work that:

(a)  is not authorised or controlled by an environment protection licence, and

(b)  in relation to which the authority is not the appropriate regulatory authority.

(2)  A regulatory authority must, as soon as practicable after becoming aware of any such exercise of functions, notify the appropriate regulatory authority in writing of the functions so exercised and of any such functions that it proposes to continue to exercise or to cease to exercise in relation to the matter.

(3)  A regulatory authority or an authorised officer of the authority may (but is not required to), if notice is given in accordance with subsection (2), continue to exercise functions under this Act or the regulations relating to the activity or work until:

(a)  directed to do otherwise by the appropriate regulatory authority, or

(b)  an environment protection licence is granted in respect of the activity or work concerned.

(4)  The appropriate regulatory authority may, by notice in writing, direct a regulatory authority (including its authorised officers) not to exercise functions under this Act or the regulations in relation to an activity or work if it becomes aware that the other authority or an authorised officer of that authority is exercising, or has exercised, functions of the appropriate regulatory authority in relation to that activity or work.

(5)  A direction given by the appropriate regulatory authority or the grant of a licence does not affect any proceedings already commenced by the other regulatory authority or an officer of that authority in respect of the activity or work and, for that purpose, this section and section 212D apply as if the direction had not been given or the licence had not been granted.

(6)  For the purposes of this Act and the regulations and any proceedings, a regulatory authority or an authorised officer of that authority who exercises a function as referred to in subsection (1), or who continues to exercise a function in accordance with subsection (3), is taken to be the appropriate regulatory authority or an authorised officer of the appropriate regulatory authority in relation to the activity or work concerned and this Act applies accordingly.

212D   Appropriate regulatory authority may continue to exercise functions

(1)  If a regulatory authority (including an authorised officer) is required to cease to exercise functions, or ceases to exercise functions, under section 212C (3) or (4), the appropriate regulatory authority or an authorised officer of that authority may continue to exercise any functions commenced by the other regulatory authority or an authorised officer, as if the functions had been exercised by the appropriate regulatory authority or an authorised officer of that authority.

(2)  For the purposes of this Act and the regulations and any proceedings, any function previously exercised by the other regulatory authority (including an authorised officer) relating to the activity or work concerned is taken to have been exercised by the appropriate regulatory authority (or an authorised officer of that authority) and this Act applies accordingly.

(3)  Without limiting subsection (2), any notice or direction given by the other authority or an authorised officer of the authority may be enforced, or varied or revoked, as if it had been given by the appropriate regulatory authority or an authorised officer of that authority.

(4)  A notice issued by the other authority or an authorised officer of the authority is taken to be varied, to the extent of any inconsistency, if a subsequent inconsistent notice is issued by or on behalf of the appropriate regulatory authority or an authorised officer of that authority.

(5)  Nothing in this section affects the right of the other regulatory authority to recover a fee, charge or cost under this Act in relation to a notice given while exercising functions as referred to in section 212C (1) or (3).

212E   Extraterritorial exercise of functions

(1)  The Minister may enter into an arrangement with a Minister of another State or Territory providing for the exercise, in another State or Territory, by authorised officers or by officers of that State or Territory of functions under this Act or the regulations.

(2)  An authorised officer or an officer of another State or Territory may, in accordance with any such arrangement, exercise functions under this Act, but only to the extent that the matters concerned relate to the environment of this State.

Chapter 8 Criminal and other proceedings

Part 8.1 Preliminary

213   Application of Chapter

(1) Proceedings under this Act
This Chapter applies to proceedings in connection with this Act.

(2) Extension to other environment protection legislation
This Chapter extends to proceedings in connection with the following legislation:

(a)  Waste Avoidance and Resource Recovery Act 2001 and the regulations under that Act,

(b)  Ozone Protection Act 1989 and the regulations under that Act,

(c)  Environmentally Hazardous Chemicals Act 1985 and the regulations under that Act.

Accordingly, a reference in this Chapter to this Act or the regulations includes a reference to each of those Acts or regulations.

(3) Limitation
Sections 217 (2) and 218 do not extend to proceedings under the Environmentally Hazardous Chemicals Act 1985 or the regulations under that Act.

Part 8.2 Proceedings for offences

Division 1 Proceedings for offences generally

214   Proceedings for tier 1 offences

(1)  Proceedings for an offence arising under Part 5.2 may be dealt with:

(a)  summarily before the Land and Environment Court in its summary jurisdiction, or

(b)  on indictment before the Supreme Court.

(2)  If any such proceedings are brought in the Land and Environment Court, the maximum period of imprisonment that the Court may impose for the offence is 2 years, despite any other provision of this Act.

215   Proceedings for other offences

(1)  Proceedings for an offence arising under this Act or the regulations (other than under Part 5.2) may be dealt with:

(a)  summarily before the Local Court, or

(b)  summarily before the Land and Environment Court in its summary jurisdiction.

(2)  If any such proceedings are brought in the Local Court, the maximum monetary penalty that the Court may impose for the offence is 200 penalty units, despite any other provision of this Act.

216   Time within which summary proceedings may be commenced

(1)  Proceedings for an offence under this Act or the regulations may be commenced:

(a)  in the case of a prescribed offence—within but not later than 3 years after the date on which the offence is alleged to have been committed, or

(b)  in any other case—within but not later than 12 months after that date.

(2)  Proceedings for an offence under this Act or the regulations may also be commenced:

(a)  in the case of a prescribed offence—within but not later than 3 years after the date on which evidence of the alleged offence first came to the attention of any relevant authorised officer, or

(b)  in any other case—within but not later than 12 months after that date.

(3)  If subsection (2) is relied on for the purpose of commencing proceedings for an offence, the court attendance notice or application must contain particulars of the date on which evidence of the offence first came to the attention of any relevant authorised officer and need not contain particulars of the date on which the offence was committed. The date on which evidence first came to the attention of any relevant authorised officer is the date specified in the court attendance notice or application, unless the contrary is established.

(4)  This section applies only to proceedings that are to be dealt with summarily.

(5)  This section applies despite anything in the Criminal Procedure Act 1986 or any other Act.

(6)  In this section:

authorised officer means any person who is an authorised officer for the purposes of this Act, whether or not the person has the functions of an authorised officer in connection with the offence concerned.

evidence of an offence means evidence of any act or omission constituting the offence.

prescribed offence means:

(a)  an offence arising under Part 5.2, or

(b)  an offence arising under Part 3.2, or

(c)  an offence arising under section 143 (Unlawful transporting of waste) or 144 (Permitting land to be used unlawfully as waste facility), or

(c1)  an offence under section 142A (Pollution of land) or 144AA (False or misleading information about waste), or

(c2)  an offence arising under the Environmentally Hazardous Chemicals Act 1985 to which this Chapter extends by virtue of section 213, or

(d)  an offence against this Act that is declared by the regulations to be a prescribed offence for the purposes of this section.

relevant authorised officer means:

(a)  in relation to proceedings for an offence instituted by or with the consent of the EPA or a member of the staff of the EPA—any authorised officer who is a member of the staff of the EPA, or

(b)  in relation to proceedings for an offence instituted by or with the consent of a local authority or an officer or employee of such an authority—any authorised officer who is an officer or employee of that authority, or

(c)  in relation to proceedings for an offence instituted by any other person—any authorised officer.

Division 2 Who may institute proceedings for offences

217   EPA or other appropriate regulatory authority may institute proceedings

(1) EPA
Proceedings for an offence against this Act or the regulations may be instituted by the EPA.

(2) Other appropriate regulatory authority
Any such proceedings may also be instituted by the appropriate regulatory authority, if it is not the EPA, in connection with a matter for which it is the appropriate regulatory authority.

218   Other authorities who may also institute proceedings

(1) Local authority—offences other than excluded offences
A local authority may institute proceedings for any offence against this Act or the regulations (other than an excluded offence).

(2) Water Supply Authority
A Water Supply Authority (within the meaning of the Water Management Act 2000) may institute proceedings for a water pollution offence (other than an excluded offence).

(3) Marine authority
The marine authority may institute proceedings for a noise pollution offence referred to in subsection (6) (d) or (e).

(4) Police officers
Police officers may institute proceedings for:

(a)  a noise pollution offence, or

(b)  a littering offence, or

(c)  an offence against the regulations relating to the operation of a motor vehicle (being an offence prescribed for the purposes of this subsection).

(5) Applicant for noise abatement order
A person who was the applicant for a noise abatement order may institute proceedings for an offence against section 269 of contravening the order.

(6) Excluded offences
For the purposes of this section, an offence is an excluded offence if it is an offence (other than a littering offence) committed in relation to:

(a)  scheduled activities, or

(b)  activities or work authorised or controlled by an environment protection licence, or

(c)  activities carried on by the State or a public authority, whether at premises occupied by the State or a public authority or otherwise, or

(d)  in the case of a noise pollution offence—a vessel in navigable waters, or

(e)  in the case of a noise pollution offence—premises used in connection with vessels and situated adjacent to, or partly or wholly over, navigable waters,

      or it is any other offence prescribed by the regulations as an excluded offence.

(7) Other definitions
In this section:

littering offence means an offence arising under Part 5.6A.

noise pollution offence means an offence arising under Part 5.5, 8.6 or any other provision prescribed for the purposes of this definition.

water pollution offence means an offence arising under Part 5.3 or any other provision prescribed for the purposes of this definition.

218A   Agents may institute proceedings

Proceedings that may be instituted under section 217 or 218 may also be instituted on behalf of an appropriate regulatory authority or any other authority or person specified in those sections by an agent of the authority or person appointed for that purpose.

219   Other persons may institute proceedings with leave of Land and Environment Court

(1)  Any person may institute proceedings in the Land and Environment Court for an offence against this Act or the regulations if the Court grants the person leave to bring the proceedings.

(1A)  An appropriate regulatory authority (other than the EPA) and any person or authority referred to in section 218 may institute proceedings in the Land and Environment Court for an offence against this Act or the regulations, if the Court grants the authority leave to bring the proceedings.

(1B)  Nothing in section 217 or 218 limits the operation of this section.

(2)  The Land and Environment Court is not to grant leave unless satisfied that:

(a)  the EPA has decided not to take any relevant action (as defined in subsection (3)) in respect of the act or omission constituting the alleged offence or has not made a decision on whether to take such action within 90 days after the person or authority requested the EPA to institute the proceedings, and

(b)  the EPA has been notified of the proceedings, and

(c)  the proceedings are not an abuse of the process of the Court, and

(d)  the particulars of the offence disclose, without any hearing of the evidence, a prima facie case of the commission of the offence.

(3)  Relevant action for the purposes of subsection (2) is not limited to the institution of criminal proceedings, but includes action under this Act to require the defendant to prevent, control, abate or mitigate any harm to the environment caused by the alleged offence or to prevent the continuance or recurrence of the alleged offence.

220   Officers and employees of authorities

(1)  If an authority is authorised by this Division to institute proceedings for an offence, the proceedings may also be instituted by an officer or employee of the authority with the written consent of:

(a)  the authority, or

(b)  such member, officer or employee of the authority as may be authorised by the authority for the purposes of this Division.

(2)  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.

221   Penalty notices and related proceedings

(1)  This Division does not affect the power to issue a penalty notice under Division 3 or the taking of enforcement proceedings in relation to the penalty notice or in relation to the offence to which the penalty notice relates.

(2)  Enforcement proceedings include proceedings under Part 3 or 4 of the Fines Act 1996, including, in particular, proceedings taken under section 37 of that Act in respect of the offence to which the penalty notice relates, where the person concerned elects to have the matter dealt with by a court.

(3)  Proceedings referred to in subsection (2) in respect of the offence to which the penalty notice relates may be instituted:

(a)  by a person who is an enforcement officer within the meaning of section 226 in relation to the class of offence concerned, or

(b)  if such an enforcement officer is an officer or employee of a public authority—by the public authority, or by an officer or employee of the public authority under section 220.

(4)  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.

Division 3 Penalty notices (tier 3 offences)

222   Penalty notice offences

For the purposes of this Division, a penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations for the purposes of this Division, other than an offence arising under Part 5.2 (Tier 1 offences).

223   What is a penalty notice?

A penalty notice is a notice to the effect that, if the person served with the notice does not wish to have a specified penalty notice offence dealt with by a court, the person may pay the penalty prescribed under section 227 for the offence:

(a)  within the time specified in the notice (being 28 days from the date on which the notice was served), and

(b)  to the person specified in the notice.

224   Service of penalty notices

(1)  An enforcement officer may serve a penalty notice on a person if it appears to the enforcement officer that the person has committed a penalty notice offence.

(2)  A penalty notice may be served personally or by post.

(3)  The regulations may authorise a penalty notice also to be served by leaving the notice on a vehicle or at other premises in respect of which the offence was committed.

225   Consequences of paying penalty in accordance with penalty notice

(1)  If the penalty prescribed for an alleged offence is paid in accordance with this Division, no person is liable to any further proceedings for the alleged offence.

(2)  Payment in accordance with this Division is not to be regarded as an admission of liability for the purposes of, nor is it in any way to affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.

226   Enforcement officers

(1)  In this Division, a reference to an enforcement officer, in relation to an offence, is a reference to a person belonging to a class of officers or employees prescribed by the regulations in relation to the offence.

(2)  A person who is an officer or employee of a public authority cannot be an enforcement officer in relation to an offence alleged to have been committed by the authority.

(3)  Only an officer or employee of the EPA can be an enforcement officer in relation to:

(a)  an offence (other than a littering offence) alleged to have been committed in relation to activities or work authorised or controlled by an environment protection licence, or

(b)  an offence (other than a littering offence) alleged to have been committed in relation to activities carried on by the State or a public authority.

(4)  In this section, littering offence means an offence arising under Part 5.6A.

227   Penalty payable

(1)  The regulations may prescribe the penalty payable under a penalty notice in respect of a penalty notice offence.

(2)  Any such penalty may not exceed the maximum penalty that may be imposed by a court on a conviction for the offence.

(3)  The regulations may prescribe different penalties for the same penalty notice offence.

228   Withdrawal of penalty notice

(1)  An enforcement officer belonging to the same class of officers as the enforcement officer by whom a penalty notice has been served:

(a)  may withdraw the notice within 28 days after the date on which the notice was served, and

(b)  must withdraw the notice immediately if directed to do so by the EPA.

(2)  The following provisions have effect in relation to an alleged offence if a penalty notice for the alleged offence is withdrawn in accordance with this section:

(a)  The amount that was payable under the notice ceases to be payable.

(b)  Any amount that has been paid under the notice is repayable to the person by whom it was paid.

(c)  Further proceedings in respect of the alleged offence may be taken against any person (including the person on whom the notice was served) as if the notice had never been served.

229   Effect on other provisions

This Division does not limit the operation of this or any other Act in relation to proceedings that may be taken in relation to offences.

Division 4 Restraining orders

230   Application of Division

(1)  This Division applies where:

(a)  proceedings have been commenced against a person for an offence against this Act or the regulations and, as a result of those proceedings, the person may be required to pay an amount referred to in section 246, or

(b)  proceedings have been commenced against a person under section 247.

(2)  In this Division:

the defendant means the person referred to in subsection (1) (a) or (b).

231   Nature of restraining order

A restraining order is an order of a court directing that any property of the defendant is not to be disposed of, or otherwise dealt with, by the defendant or by any other person, except in such manner and in such circumstances (if any) as are specified in the order.

232   Application for restraining order

(1)  The person bringing the proceedings (as referred to in section 230) may apply for a restraining order in relation to property of the defendant.

(2)  An application under this section may be made:

(a)  in the case of proceedings taken before the Local Court—to the Land and Environment Court, and

(b)  in the case of other proceedings—to the court before which the proceedings are brought.

(3)  On an application under this section:

(a)  the court may, if it thinks fit, require the person making the application to give notice of the application to a person who the court has reason to believe has an interest in the property or part of the property, and

(b)  a person to whom the court requires notice to be given under paragraph (a) is entitled to appear and to adduce evidence at the hearing of the application.

233   Making of restraining order

On an application under section 232, the court may make a restraining order in relation to the defendant’s property, if it is satisfied (on the information contained in or accompanying the application) that:

(a)  the defendant has committed the relevant offence, and

(b)  amounts are or are likely to be payable under section 246 or 247, and

(c)  it is appropriate to make an order under this section in the circumstances of the case.

234   Undertakings

The court may refuse to make a restraining order if the person making the application refuses or fails to give to the court such undertakings as the court considers appropriate with respect to the payment of damages or costs, or both, in relation to the making or operation of the order.

235   Ancillary orders

(1)  A court that makes a restraining order may make any ancillary orders that the court considers appropriate.

(2)  Without limiting the generality of subsection (1), ancillary orders may include any one or more of the following:

(a)  an order for the examination on oath of:

(i)  the defendant, or

(ii)  another person,

      before the court, or an officer of the court prescribed by rules of court, concerning the affairs of the defendant, including the nature and location of any property of the defendant,

(b)  an order varying the restraining order in respect of the property to which it relates,

(c)  an order varying any conditions to which the restraining order was subject.

(3)  An ancillary order may be made on application:

(a)  by the applicant for the restraining order, or

(b)  by the defendant, or

(c)  with the leave of the court, by any other person.

(4)  Ancillary orders may be made when or at any time after the restraining order is made. An ancillary order referred to in subsection (2) (a) may be made in advance of the restraining order.

236   Charge on property subject to restraining orders

(1) Creation of charge
If:

(a)  a court has made a restraining order in respect of particular property or all of the property of the defendant, and

(b)  the court orders the payment of an amount referred to in section 246 or 247,

      there is created by force of this section, on the making of the order referred to in paragraph (b), a charge on all the property to which the restraining order applies to secure the payment to a public authority or person of the amount referred to in section 246 or 247.

(2) When charge ceases to have effect
Such a charge ceases to have effect in respect of the property:

(a)  on payment by the defendant to the public authority or person of the amount concerned, or

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

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

      whichever first occurs.

(3) Charge is subject to existing charges and encumbrances
Such a charge is subject to every charge or encumbrance to which the property was subject immediately before the order referred to in subsection (1) (b) was made and, in the case of land under the provisions of the Real Property Act 1900, is subject to every mortgage, lease or other interest recorded in the Register kept under that Act.

(4) Charge not affected by change of ownership
Such a charge is not affected by any change of ownership of the property, except as provided by subsection (2).

(5) Registration of charge is notice
If:

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

(b)  the charge is so registered,

      a person who purchases or otherwise acquires the property after the registration of the charge is, for the purposes of subsection (2), taken to have notice of the charge.

(6) Charge on RP land not effective until registered
If such a charge relates to land under the provisions of the Real Property Act 1900, the charge has no effect until it is registered under that Act.

237   Registration of restraining orders

(1)  If a restraining order applies to property of a particular kind and the provisions of any law of the State provide for the registration of title to, or charges over, property of that kind, the authority responsible for administering the provisions is required, on application by any person, to record the particulars of the order in the register kept under those provisions.

(2)  If the particulars of a restraining order are so recorded, a person who afterwards deals with the property is, for the purposes of section 236 (2), taken to have notice of the charge created by this Act on the making of the order.

(3)  If a restraining order applies to land under the provisions of the Real Property Act 1900, a caveat may be lodged under that Act in relation to the order.

237A   Recovery of costs of registering charge on land

(1)  A person (including a public authority) who registers a charge on land to which a restraining order applies under section 236 may, by notice in writing, require the defendant to pay all or any of the reasonable costs and expenses incurred by the person in respect of the lodgment and registration of the charge (including the costs of discharging the charge).

(2)  The person may recover from the defendant any unpaid amounts specified in the notice as a debt in a court of competent jurisdiction.

237B   Recovery of costs of lodging caveat

(1)  A person (including a public authority) who lodges a caveat in respect of land to which a restraining order applies under section 237 may, by notice in writing, require the defendant to pay all or any of the reasonable costs and expenses incurred by the person in respect of the lodgment and registration of the caveat (including the costs of withdrawal of the caveat).

(2)  The person may recover from the defendant any unpaid amounts specified in the notice as a debt in a court of competent jurisdiction.

238   Contravention of restraining orders

(1) Offence
A person who knowingly contravenes a restraining order by disposing of, or otherwise dealing with, property that is subject to the order is guilty of an offence.

Maximum penalty: A fine equivalent to the value of the property (as determined by the court) or imprisonment for 2 years, or both.

(2) Application for order setting aside disposition of or dealing with property
If:

(a)  a restraining order is made against property, and

(b)  the property is disposed of, or otherwise dealt with, in contravention of the restraining order, and

(c)  the disposition or dealing was either not for sufficient consideration or not in favour of a person who acted in good faith,

      the person who applied for the restraining order may apply to the court that made the restraining order for an order that the disposition or dealing with the property be set aside.

(3) Order setting aside disposition or dealing
If an application is made under subsection (2), the court may make an order:

(a)  setting aside the disposition or dealing as from the day on which the disposition or dealing took place or as from the day of the order under this subsection, and

(b)  (if appropriate) declaring the respective rights of any persons who acquired interests in the property on or after the day on which the disposition or dealing took place and before the day of the order.

239   Court may revoke restraining order

(1)  The court that made a restraining order may revoke the order, on application made to it by the person in relation to whose property it was made.

(2)  The court may refuse to revoke the order if the person does not:

(a)  give security satisfactory to the court for the payment of any amount referred to in section 246 or 247 that may be imposed on or ordered to be paid by the person under this Act in respect of the person’s conviction for the offence, or

(b)  give undertakings satisfactory to the court concerning the person’s property.

(3)  Subsection (2) does not limit the discretion of the court to revoke or refuse to revoke a restraining order.

240   Time when restraining order ceases to be in force

If, after a restraining order was made in reliance on the charging of a person with an offence against this Act or the regulations:

(a)  the charge is withdrawn and the person is not charged with a related offence by the time of the withdrawal—the restraining order ceases to be in force when the charge is withdrawn, or

(b)  the person is acquitted of the charge and the person is not charged with a related offence by the time of the acquittal—the restraining order ceases to be in force when the acquittal occurs.

Division 5 Sentencing

241   Matters to be considered in imposing penalty

(1)  In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant):

(a)  the extent of the harm caused or likely to be caused to the environment by the commission of the offence,

(b)  the practical measures that may be taken to prevent, control, abate or mitigate that harm,

(c)  the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence,

(d)  the extent to which the person who committed the offence had control over the causes that gave rise to the offence,

(e)  whether, in committing the offence, the person was complying with orders from an employer or supervising employee.

(2)  The court may take into consideration other matters that it considers relevant.

Division 6 Continuing offences

242   Continuing offences

(1)  A person who is guilty of an offence because the person contravenes a requirement made by or under this Act or the regulations (whether the requirement is imposed by a notice or otherwise) to do or cease to do something (whether or not within a specified period or before a particular time):

(a)  continues, until the requirement is complied with and despite the fact that any specified period has expired or time has passed, to be liable to comply with the requirement, and

(b)  is guilty of a continuing offence for each day the contravention continues.

(2)  This section does not apply to an offence if the relevant provision of this Act or the regulations does not provide for a penalty for a continuing offence.

(3)  This section does not apply to the extent that a requirement of a notice is revoked.

Part 8.3 Court orders in connection with offences

243   Operation of Part

(1) Application to proved offences
This Part applies where a court finds an offence against this Act or regulations proved.

(2) Meaning of proved offences
Without limiting the generality of subsection (1), a court finds an offence proved if:

(a)  the court convicts the offender of the offence, or

(b)  the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 against the offender in relation to the offence (in which case the order is not a punishment for the purposes of that section).

(3) Definitions
In this Part:

the court means the court that finds the offence proved.

the offender means the person who is found to have committed the offence.

244   Orders generally

(1) Orders may be made
One or more orders may be made under this Part against the offender.

(2) Orders are additional
Orders may be made under this Part in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence.

(3) Other action not required
Orders may be made under this Part regardless of whether any penalty is imposed, or other action taken, in relation to the offence.

245   Orders for restoration and prevention

The court may order the offender to take such steps as are specified in the order, within such time as is so specified (or such further time as the court on application may allow):

(a)  to prevent, control, abate or mitigate any harm to the environment caused by the commission of the offence, or

(b)  to make good any resulting environmental damage, or

(c)  to prevent the continuance or recurrence of the offence.

246   Orders for costs, expenses and compensation at time offence proved

(1)  The court may, if it appears to the court that:

(a)  a public authority has incurred costs and expenses in connection with:

(i)  the prevention, control, abatement or mitigation of any harm to the environment caused by the commission of the offence, or

(ii)  making good any resulting environmental damage, or

(b)  a person (including a public authority) has, by reason of the commission of the offence, suffered loss of or damage to property or has incurred costs and expenses in preventing or mitigating, or in attempting to prevent or mitigate, any such loss or damage,

      order the offender to pay to the public authority or person the costs and expenses so incurred, or compensation for the loss or damage so suffered, as the case may be, in such amount as is fixed by the order.

(2)  An order made by the Land and Environment Court under subsection (1) is enforceable as if it were an order made by the Court in Class 4 proceedings under the Land and Environment Court Act 1979.

(3)  The Local Court may not make an order under subsection (1) for the payment of an amount that exceeds the amount for which an order may be made by the court when exercising jurisdiction under the Civil Procedure Act 2005. An order made by the court is enforceable as if it were an order made by the court when exercising jurisdiction under that Act.

247   Recovery of costs, expenses and compensation after offence proved

(1)  If, after the court finds the offence proved:

(a)  a public authority has incurred costs and expenses in connection with:

(i)  the prevention, control, abatement or mitigation of any harm to the environment caused by the commission of the offence, or

(ii)  making good any resulting environmental damage, or

(b)  a person (including a public authority) has, by reason of the commission of the offence, suffered loss of or damage to property or has incurred costs and expenses in preventing or mitigating, or in attempting to prevent or mitigate, any such loss or damage,

      the person or public authority may recover from the offender the costs and expenses incurred or the amount of the loss or damage in the Land and Environment Court.

(2)  The amount of any such costs and expenses (but not the amount of any such loss or damage) may be recovered as a debt.

248   Orders regarding costs and expenses of investigation

(1)  The court may, if it appears to the court that a regulatory authority has reasonably incurred costs and expenses during the investigation of the offence, order the offender to pay to the regulatory authority the costs and expenses so incurred in such amount as is fixed by the order.

(2)  An order made by the Land and Environment Court under subsection (1) is enforceable as if it were an order made by the Court in Class 4 proceedings under the Land and Environment Court Act 1979. An order made by the Local Court under subsection (1) is enforceable as if it were an order made by the court when exercising jurisdiction under the Civil Procedure Act 2005.

(3)  In this section:

costs and expenses, in relation to the investigation of an offence, means the costs and expenses:

(a)  in taking any sample or conducting any inspection, test, measurement or analysis, or

(b)  of transporting, storing or disposing of evidence,

      during the investigation of the offence.

249   Orders regarding monetary benefits

(1)  The court may order the offender to pay, as part of the penalty for committing the offence, an additional penalty of an amount the court is satisfied, on the balance of probabilities, represents the amount of any monetary benefits acquired by the offender, or accrued or accruing to the offender, as a result of the commission of the offence.

(2)  The amount of an additional penalty for an offence is not subject to any maximum amount of penalty provided elsewhere by or under this Act.

(3)  In this section:

monetary benefits means monetary, financial or economic benefits.

the court does not include the Local Court.

250   Additional orders

(1) Orders
The court may do any one or more of the following:

(a)  order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the person,

(b)  order the offender to take specified action to notify specified persons or classes of persons of the offence (including the circumstances of the offence) and its environmental and other consequences and of any orders made against the person (including, for example, the publication in an annual report or any other notice to shareholders of a company or the notification of persons aggrieved or affected by the offender’s conduct),

(c)  order the offender to carry out a specified project for the restoration or enhancement of the environment in a public place or for the public benefit,

(d)  order the offender to carry out a specified environmental audit of activities carried on by the offender,

(e)  order the offender to pay a specified amount to the Environmental Trust established under the Environmental Trust Act 1998, or a specified organisation, for the purposes of a specified project for the restoration or enhancement of the environment or for general environmental purposes,

(f)  order the offender to attend, or to cause an employee or employees or a contractor or contractors of the offender to attend, a training or other course specified by the court,

(g)  order the offender to establish, for employees or contractors of the offender, a training course of a kind specified by the court,

(h)  if the EPA is a party to the proceedings, order the offender to provide a financial assurance, of a form and amount specified by the court, to the EPA, if the court orders the offender to carry out a specified work or program for the restoration or enhancement of the environment.

The Local Court is not authorised to make an order referred to in paragraph (c), (d), (e) or (h).

(2) Machinery
The court may, in an order under this section, fix a period for compliance and impose any other requirements the court considers necessary or expedient for enforcement of the order.

(3) Failure to publicise or notify
If the offender fails to comply with an order under subsection (1) (a) or (b), the prosecutor or a person authorised by the prosecutor may take action to carry out the order as far as may be practicable, including action to publicise or notify:

(a)  the original contravention, its environmental and other consequences, and any other penalties imposed on the offender, and

(b)  the failure to comply with the order.

(4) Cost of publicising or notifying
The reasonable cost of taking action referred to in subsection (3) is recoverable by the prosecutor or person taking the action, in a court of competent jurisdiction, as a debt from the offender.

(5) Financial assurances
Sections 302–307 apply to a financial assurance provided by an offender under an order made under this section in the same way as they apply to a financial assurance given by a holder of a licence under a condition of a licence under Part 9.4.

251   Offence

A person who fails to comply with an order under this Part (except an order under section 246, 247 or 248) is guilty of an offence.

Maximum penalty:

•  in the case of a corporation—$120,000 for each day the offence continues, or

•  in the case of an individual—$60,000 for each day the offence continues.

Part 8.4 Civil proceedings to remedy or restrain breaches of Act or harm to environment or enforce undertakings

252   Remedy or restraint of breaches of this Act or regulations

(1)  Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations.

(2)  Any such proceedings may be brought whether or not proceedings have been instituted for an offence against this Act or the regulations.

(3)  Any such proceedings may be brought whether or not any right of the person has been or may be infringed by or as a consequence of the breach.

(4)  Any such proceedings may be brought by a person on the person’s own behalf or on behalf of another person (with their consent), or of a body corporate or unincorporate (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.

(5)  Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.

(6)  If the Court is satisfied that a breach has been committed or that a breach will, unless restrained by order of the Court, be committed, it may make such orders as it thinks fit to remedy or restrain the breach.

(7)  Without limiting the powers of the Court under this section, an order under this section may suspend any environment protection licence.

(8)  In this section:

breach includes a threatened or apprehended breach.

253   Restraint of breaches of an Act or statutory rules that harm the environment

(1)  Any person may bring proceedings in the Land and Environment Court for an order to restrain a breach (or a threatened or apprehended breach) of any other Act, or any statutory rule under any other Act, if the breach (or the threatened or apprehended breach) is causing or is likely to cause harm to the environment.

Note. Statutory rule is defined in section 21 of the Interpretation Act 1987.

(2)  Any such proceedings may be brought whether or not any right of that person has been or may be infringed by or as a consequence of the breach (or the threatened or apprehended breach).

(3)  A person (other than the EPA or a member of the staff of the EPA) who brings any such proceedings is required to give a copy of the application to the EPA as soon as practicable after the application is made. The EPA is entitled to become a party to those proceedings.

(4)  If the Court is satisfied that a breach, or a threatened or apprehended breach, will, unless restrained by order of the Court, be committed or be likely to be committed, it may make such orders as it thinks fit to restrain the breach or other conduct of the person by whom the breach is committed or by whom the threatened or apprehended breach is likely to be committed.

(5)  Without limiting the powers of the Court under this section, an order under this section may suspend any environment protection licence.

253A   Enforcement of undertakings

(1)  The EPA may accept a written undertaking given by a person for the purposes of this section in connection with a matter in relation to which the EPA has a function under this Act.

(2)  The person may withdraw or vary the undertaking at any time, but only with the consent in writing of the EPA. The consent of the EPA is required even if the undertaking purports to authorise withdrawal or variation of the undertaking without that consent.

(3)  The EPA may apply to the Land and Environment Court for an order under subsection (4) if the EPA considers that the person who gave the undertaking has breached any of its terms.

(4)  The Court may make all or any of the following orders if it is satisfied that the person has breached a term of the undertaking:

(a)  an order directing the person to comply with that term of the undertaking,

(b)  an order directing the person to pay to the State an amount not exceeding the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach,

(c)  any order that the Court thinks appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach,

(d)  an order suspending or revoking any environment protection licence held by the person,

(e)  an order requiring the person to prevent, control, abate or mitigate any actual or likely harm to the environment caused by the breach,

(f)  an order requiring the person to make good any actual or likely harm to the environment caused by the breach,

(g)  any other order the Court considers appropriate.

Part 8.5 Evidentiary provisions

254   Definitions

In this Part:

designated officer means an officer of the EPA designated in writing by the Director-General of the EPA for the purposes of this Part.

information relating to an offence includes an application referred to in section 41 of the Land and Environment Court Act 1979.

instrument includes a notice, order or written direction.

255   Evidence of threshold tests for scheduled activities

(1)  In a case where there is a numerical or other threshold to be met for the purposes of determining whether activities are scheduled activities:

(a)  the question of whether the threshold was met is not relevant for the purposes of any proceedings under this Act, once it is established that an environment protection licence was in force in respect of the activities at the relevant time, and

(b)  it is immaterial for the purposes of those proceedings that the licence was not at that or any other time, or ever, needed.

(2)  This section does not apply to licences that are only issued to regulate water pollution resulting from non-scheduled activities.

256   Onus of proof of certain matters

(1)  In any proceedings under this Act, the onus of proving that a person had a reasonable excuse or lawful excuse (as referred to in any provision of this Act or the regulations) lies with the defendant.

(2)  In any proceedings for an offence under Part 5.6A, the onus of proving an exception under section 145 (3)–(5), 146A (3), 146B (3) or 146E (4) lies with the defendant, but nothing in this subsection affects the construction or operation of any other provision of this Act.

257   Occupier of premises responsible for pollution from premises

(1)  In any proceedings under this Act, the occupier of premises at or from which any pollution occurs is taken to have caused the pollution, unless it is established that:

(a)  the pollution was caused by another person, and

(b)  the other person was not associated with the occupier at the time the pollution occurred, and

(c)  the occupier took all reasonable steps to prevent the pollution.

A person is associated with the occupier 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 occupier.

(2)  Subsection (1) does not prevent proceedings being taken under this Act against the person who actually caused the pollution.

258   Evidence relating to occupier of premises

(1)  In any proceedings under this Act, no proof is required (until evidence is given to the contrary) of the fact that a person is, or at any relevant time was, the occupier of any premises to which the proceedings relate.

(2)  In any proceedings under this Act, the holder of a licence under this Act in respect of any premises at a particular time or period is taken to be the occupier of the premises at that time or during that period.

259   Proof of certain appointments not required

In any proceedings under this Act no proof is required (until evidence is given to the contrary) of:

(a)  the appointment of the Director-General of the EPA or any member of the staff of the EPA, or

(b)  the appointment of the general manager or any officer or employee of a local authority, or

(c)  the appointment of the marine authority.

260   Documentary evidence generally

Any instrument purporting:

(a)  to be an instrument issued, made or given for the purposes of this Act, and

(b)  to have been signed by the person authorised to issue, make or give the instrument, or by another person acting as delegate or on behalf of the person,

is admissible in any proceedings under this Act and (in the absence of evidence to the contrary) is to be taken to be such an instrument and to have been so signed.

261   Certificate evidence of certain matters

(1)  A document signed by the Director-General of the EPA or a designated officer and certifying any one or more of the matters specified in subsection (2) is admissible in any proceedings under this Act and is prima facie evidence of the matters so certified.

(2)  The matters referred to in subsection (1) are as follows:

(a)  that an instrument, a copy of which is set out in or annexed to the document, being an instrument purporting:

(i)  to be issued, made or given for the purposes of this Act, and

(ii)  to have been signed by the person authorised to issue, make or give the instrument, or by another person acting as delegate or on behalf of the person,

      was issued, made or given on a specified day,

(b)  that a person was or was not, at a specified time or during a specified period, the holder of a specified licence or a licence of a specified kind,

(b1)  that specified premises were or were not, at a specified time or during a specified period, the subject of a specified licence or a licence of a specified kind,

(c)  that a licence was or was not, at a specified time or during a specified period, subject to specified conditions,

(d)  that a licence was, at a specified time, revoked or suspended for a specified period or was revoked or suspended subject to specified conditions,

(e)  that, at a specified time, the surrender of a licence was approved or was approved subject to specified conditions,

(f)  that a condition was, at a specified time, revoked or varied in a specified manner or that a new condition was, at a specified time, attached to a licence or to the revocation, suspension or surrender of a licence,

(g)  that a person was or was not, at a specified time or during a specified period, an authorised officer or enforcement officer,

(h)  that a person was or was not, at a specified time or during a specified period, a member of staff of the EPA, the Department of Health, the marine authority or a local authority,

(i)  that an exemption was or was not given under this Act in relation to any specified matter,

(j)  that any such exemption was or was not, at a specified time or during a specified period, in force or subject to specified conditions,

(k)  that any exemption was or was not, or that any such conditions were or were not, varied or revoked at a specified time,

(l)  that any consent necessary for bringing proceedings for an offence arising under this Act or a regulation under this Act has been duly given,

(m)  that an order, a copy of which is set out in or annexed to the certificate, was for the purposes of section 133 or 162 published in a specified manner and on a specified day,

(n)  that premises are within an area to which an order under section 133 applies, a copy of which order is set out in or annexed to the certificate,

(o)  that a register kept under this Act shows that specified premises were, at a specified time or during a specified period, within a specified classification referred to in regulations under this Act,

(p)  that a person was or was not appointed by the EPA as an analyst under this Act during a specified period,

(q)  that information required to be furnished to a regulatory authority or authorised officer pursuant to this Act or the regulations was or was not received,

(r)  that a document is a copy of part of, or an extract from, a register kept under this Act,

(s)  that an amount is payable under this Act or the regulations by a specified person and has not been paid,

(t)  that a person was served with a notice under this Act or the regulations,

(u)  that a specified function of the EPA or Director-General was delegated to a specified person under section 21 of the Protection of the Environment Administration Act 1991 during a specified period.

(3)  For the purposes of a certificate referred to in subsection (2) (g) in respect of an authorised officer or enforcement officer, a designated officer who may give the certificate includes the appropriate regulatory authority that appointed the authorised officer or enforcement officer or an officer of that authority who is appointed by that authority for the purposes of this subsection.

262   Evidence of analysts

(1)  The EPA may, by instrument in writing, appoint appropriately qualified persons to be analysts for the purposes of this Act.

(2)  A certificate of such an analyst stating the result of an analysis or examination is admissible in evidence in any proceedings under this Act as evidence of the facts stated in the certificate and the correctness of the result of the analysis or examination.

(3)  A certificate of such an analyst that, on receipt of a container containing a sample submitted to the analyst by an authorised officer or any other person, the container was sealed and the seal securing the container was unbroken is admissible in evidence in any proceedings under this Act or the regulations as evidence:

(a)  of the facts stated in the certificate, and

(b)  that the sample was the same sample as the one obtained by the authorised officer or other person, and

(c)  that the sample had not been tampered with before it was received by the analyst.

(4)  For the purposes of this section, a document purporting to be a certificate under this section is, unless the contrary is proved, to be taken to be such a certificate.

Part 8.6 Noise—special provisions

Division 1 Noise control notices—regulatory authorities

263   Definition of “appropriate regulatory authority”

For the purposes of this Division, the marine authority is the appropriate regulatory authority in relation to:

(a)  vessels in navigable waters, and

(b)  premises used in connection with vessels and situated adjacent to, or partly or wholly over, navigable waters.

264   Noise control notices relating to premises

(1)  This section applies to:

(a)  the person who is the occupier of any premises, or

(b)  the person who carries on or proposes to carry on an activity at any premises or who uses or operates or proposes to use or operate an article at any premises.

(2)  The appropriate regulatory authority may, by notice in writing given to such a person, prohibit the person from causing, permitting or allowing:

(a)  any specified activity to be carried on at the premises, or

(b)  any specified article to be used or operated at the premises,

      or both, in such a manner as to cause the emission from the premises at all times or on specified days, or between specified times on all days or on specified days, of noise that, when measured at any specified point (whether within or outside the premises), is in excess of a specified level.

(3)  If, in a noise control notice, there is no reference to the times or days during or on which the prohibition imposed by the notice is to operate, the prohibition operates at all times.

(4)  Nothing in this section affects the power under this Act to attach conditions to an environment protection licence.

265   Offence to contravene noise control notice

(1)  A person who contravenes a noise control notice is guilty of an offence.

(2)  A person is not guilty of an offence unless it is established that the alleged offence resulted in the emission, from the premises to which the alleged offence relates, of noise that was able to be detected or perceived outside those premises without the aid of an instrument, machine or device.

Maximum penalty:

•  in the case of a corporation—$60,000 and, in the case of a continuing offence, a further penalty of $6,000 for each day the offence continues, or

•  in the case of an individual—$30,000 and, in the case of a continuing offence, a further penalty of $600 for each day the offence continues.

266   Revocation or variation of noise control notices

A noise control notice may be revoked or varied by the appropriate regulatory authority by a further notice under this Division.

267   Commencement of operation of noise control notices

(1)  A noise control notice operates from the day the notice is given or from such later day as the notice specifies.

(2)  If an appeal is made against a noise control notice 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.

267A   Fee

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

(2)  A person who is given a noise control 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 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 noise control notice.

(5)  A fee is not payable on the variation or revocation of a noise control notice.

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

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

Maximum penalty (subsection (7)): 200 penalty units.

267B   Compliance costs

(1)  The appropriate regulatory authority that gives a noise control notice to a person may, by notice in writing (in this section referred to as a compliance cost notice), require the person to pay all or any reasonable costs 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)  A regulatory authority may recover any unpaid amounts specified in a compliance cost notice as a debt in a court of competent jurisdiction.

(3)  If the person given a compliance cost notice complies with the notice but was not the person who caused the noise, 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 noise.

Division 2 Noise abatement orders—Local Court

268   Issue of noise abatement orders

(1)  The occupier of any premises may apply to the Local Court for an order under this section.

(2)  The application is to be commenced by the issue of an application notice that alleges that the occupier’s occupation of premises is affected by offensive noise.

(3)  The respondent to the application may be a person alleged to be making or contributing to the noise or the occupier of premises from which the noise is alleged to be emitted.

(4)  If the Local Court is satisfied (on the balance of probabilities) that the alleged offensive noise exists, or that although abated it is likely to recur on the same premises, the Local Court may make either or both of the following orders:

(a)  an order directing the respondent to abate the offensive noise within the time specified in the order,

(b)  an order directing the respondent to prevent a recurrence of the offensive noise.

(5)  Part 4 of the Local Court Act 2007 applies to an application under this section.

269   Contravention of noise abatement order

A person who contravenes a noise abatement order is guilty of an offence.

Maximum penalty: 30 penalty units.

270   Restrictions on noise abatement orders

(1)  A noise abatement order has no force in so far as it is directed to:

(a)  the State or a person acting on behalf of the State, or

(b)  a public authority or a person in the capacity of a member, officer or employee of a public authority, or

(c)  a person or body prescribed by the regulations for the purposes of this paragraph.

(2)  A noise abatement order has no force in so far as it would have the result of affecting:

(a)  any activity carried on by or for the State or a public authority, or

(b)  any scheduled activity, or any other activity or work that is the subject of an environment protection licence, or

(c)  any activity of a class or description prescribed by the regulations for the purposes of this paragraph.

271   Commencement of operation of noise abatement order

(1)  A noise abatement order operates from the day the order is made or from such later day as the order specifies.

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

272   Revocation or variation of noise abatement orders

A noise abatement order may be revoked or varied by the Local Court.

273   Costs

The Local Court may award costs against any party in proceedings under this Division.

274   (Repealed)

Division 3 Noise abatement directions—police and other authorised persons

275   Definition of “authorised person”

In this Division:

authorised person means:

(a)  in any case—an authorised officer or a police officer, or

(b)  in relation to vessels in navigable waters—an officer or employee of the marine authority authorised by the marine authority for the purposes of this Division.

276   Issue of noise abatement directions

If it appears to an authorised person that offensive noise is being, or has at any time within the past 7 days been, emitted from any premises, the authorised person may:

(a)  direct the person whom the authorised person believes to be the occupier of the premises to cause the emission of the offensive noise to cease, or

(b)  direct any person whom the authorised person believes to be making or contributing to the making of the noise to cease making or contributing to the making of offensive noise,

or both.

277   Contravention of noise abatement directions

(1)  A person to whom a noise abatement direction has been given under section 276 (a) must not, without reasonable excuse, while the direction remains in force:

(a)  fail to cause the emission of the offensive noise from the premises to cease promptly, or

(b)  at any time within 28 days following the time at which the direction was given (or such shorter period as is specified in the direction), cause or permit offensive noise to be emitted from the premises.

(2)  A person to whom a noise abatement direction has been given under section 276 (b) must not, without reasonable excuse, while the direction remains in force:

(a)  fail to promptly cease making or contributing to the making of the offensive noise, or

(b)  at any time within 28 days following the time at which the direction was given (or such shorter period as is specified in the direction), make or contribute to the making of offensive noise that is emitted from the premises.

(3)  A noise abatement direction does not prevent the emission of noise that is not offensive noise.

(4)  A person who contravenes this section is guilty of an offence.

Maximum penalty: 30 penalty units.

278   Restrictions on noise abatement directions

(1)  A noise abatement direction (other than a direction given by an authorised officer appointed by the EPA) has no force in so far as it is directed to:

(a)  the State or a person acting on behalf of the State, or

(b)  a public authority or a person in the capacity of a member, officer or employee of a public authority, or

(c)  a person or body prescribed by the regulations for the purposes of this paragraph.

(2)  A noise abatement direction (other than a direction given by an authorised officer appointed by the EPA) has no force in so far as it would have the result of affecting:

(a)  any activity carried on by or for the State or a public authority, or

(b)  any scheduled activity, or any other activity or work that is the subject of an environment protection licence, or

(c)  any activity of a class or description prescribed by the regulations for the purposes of this paragraph.

279   Revocation of noise abatement directions

A noise abatement direction may be revoked by the person who gave (or could have given) the direction or by a person of a class prescribed by the regulations.

Division 4 Police powers regarding noise

280   Powers of entry by police by warrant

(1) Complaint for and issue of warrant
On complaint being made by a police officer to a Magistrate that:

(a)  the police officer has been denied entry to any specified premises, and

(b)  the police officer believes that:

(i)  offensive noise is being emitted from the premises or offensive noise has, within the past 7 days, been emitted from the premises, and

(ii)  it is necessary for a police officer to enter the premises immediately in order to give a noise abatement direction in relation to offensive noise emitted from the premises or to investigate whether a noise abatement direction has been contravened,

      the Magistrate may, if satisfied that there are reasonable grounds for that belief, by warrant, authorise and require the police officer to enter the premises and to give a noise abatement direction or investigate whether a noise abatement direction has been contravened.

(2) Manner of making complaint
The complaint may be made by a police officer to the Magistrate in person or by telephone and may be made directly to the Magistrate or, where in all the circumstances it is impracticable to make the complaint directly, by causing the complaint to be transmitted by another police officer by either of those means.

(3) Indirect complaint
The fact that the complaint is made to the Magistrate by a police officer who causes the complaint to be transmitted by another police officer to the Magistrate does not, if the Magistrate is of the opinion that it is in all the circumstances impracticable to communicate directly with the police officer making the complaint, prevent the Magistrate being satisfied as to the matters specified in subsection (1).

(4) How warrant granted
The Magistrate grants the warrant by stating the terms of the warrant.

(5) Magistrate to make record
The Magistrate who grants the warrant is required to cause a record to be made in writing in the prescribed form of:

(a)  the name of the police officer who was the complainant, and

(b)  where the complaint was transmitted by a police officer on behalf of the complainant�