Frequently asked questions

QUESTION

ANSWER

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What are the offences that councils can deal with by way of penalty notice?

For the full list, obtain a copy of the Protection of the Environment Operations (Penalty Notices) Regulation 2004.

Under the POEO Act, offences capable of being dealt with by penalty notice for the first time include:

• Failure to comply with a clean-up notice (section 91)
• Failure to pay clean-up notice fee (section 94)
• Failure to comply with a prevention notice (section 97)
• Failure to pay prevention notice fee (section 100)
• Failure to notify a pollution incident (section 152)
• Littering from vehicles (sections 145 and 146).

Which council officers can issue penalty notices?

This is a matter for each council to determine. Every council should keep a record of the particular officers empowered to issue particular penalty notices. (See clause 6(1) and (2), POEO (Penalty Notices) Regulation 2004 and the Penalty Notices - Fixed Penalty Handbook for Local Councils (prepared by the State Debt Recovery Office - see www.sdro.nsw.gov.au).)

What are the offence codes?

The State Debt Recovery Office (SDRO) Fixed Penalty Handbook contains the offence codes necessary to issue a penalty notice. SDRO clients may obtain a copy of the handbook at www.sdro.nsw.gov.au.

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Appropriate regulatory authority (ARA)

Who regulates councils?

The EPA regulates councils, because they are 'public authorities' (section 6, POEO Act).

How can I find out if a licence is necessary?

Check Schedule 1 of the POEO Act, which lists the activities for which a licence is required (section 5). The EPA mailed a copy of Guide to Licensing to every Council in May 1999.

Regarding waterways, wharves and boats, where does a council's power end, and the jurisdiction of the Waterways Authority/Maritime Authority of NSW commence?

• Councils: A council can take action in or in relation to its area (section 6(4)). In general terms 'area' includes the land and water down to the foreshore low-water mark, however see section 205 of the Local Government Act 1993 for more detail. Councils have planning powers (for example, requiring pump-out facilities on a wharf) and powers to minimise the entry of pollution into waterways in the first place (for example, penalty notices for littering, waste dumping and water pollution, and clean-up notices and prevention notices). (Note that a fee of $320 is payable to council in respect of the clean-up and prevention notices that it issues.)

• Waterways Authority/Maritime Authority of NSW: Under the Protection of the Environment Operations (General) Regulation 1998, the Waterways Authority (now known as the Maritime Authority of NSW) is declared to be the ARA for non-scheduled activities involving non-pilotage vessels in navigable waters. Subject to certain exceptions, the Maritime Authority of NSW has the power to issue clean-up notices, prevention notices and penalty notices. The Maritime Authority of NSW also has the power to issue noise control notices, noise abatement directions and penalty notices in relation to noise from vessels in navigable waters and related premises (see sections 263 and 275 POEO Act for further detail). The Maritime Authority of NSW can also issue penalty notices for water pollution or littering in any public place (including water – see section 145 POEO Act).

• EPA: The EPA is the ARA in respect of premises or activities authorised or controlled by a licence.

Who is the ARA, and what can be done about:

1. a noisy party on a boat;
2. littering from a wharf; or
3. management of toilets on boats, or discharge of bilge water from boats in navigable waters?

1. Waterways Authority/ Maritime Authority of NSW – issue a noise abatement direction. (Note also that the occupier of any premises affected by offensive noise can seek a noise abatement order from a local court.)
2. Council – issue a penalty infringement notice for littering, or water pollution, depending on the circumstances and the seriousness of the littering, or issue a clean-up notice. (Under section 205(3)(b) Local Government Act 1993, land on the foreshores of an area and beyond low-water mark that has a structure erected on it, such as a wharf, is within a council's area.)
3. In respect of non-scheduled activities for non-pilotage vessels in navigable waters, the Waterways Authority can issue a prevention notice, penalty notice or prosecute. The EPA also has the power to issue a penalty notice or to prosecute.

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Notice powers and resources

Can councils recover their costs in issuing noise control notices under POEO?

Yes. The Protection of the Environment Operations Amendment Act 2005 now allows for the recovery of the costs of issuing a noise control notice. These costs can be recovered through a compliance cost notice. A fee of $320 is payable within 30 days of giving a noise control notice, and subsequent follow-up costs can be recovered through a compliance cost notice.

Can prevention notices require ongoing action, such as monitoring?

If an activity is being carried on in an environmentally unsatisfactory manner, a prevention notice can require such ongoing action to ensure that the activity is carried on in future in an environmentally satisfactory manner.  Examples are contained in section 96. Reasonable ongoing action, such as monitoring, can be required.

Can both clean-up and prevention notices be issued in respect of a problem site?

There should be no need for two notices.  A clean-up notice can include most of the provisions that would be contained in a prevention notice. Clean-up notices can have a preventive effect, for example to prevent a leak or spill which is likely to occur.

How can councils apply the controls formerly contained in licence conditions to activities that are no longer licensed?

Through the use of prevention notices, if the activity is carried on in an environmentally unsatisfactory manner (section 95).

In addition to using prevention notices, there may be relevant development consent conditions that councils can enforce. Councils may also be able to exercise powers under the Local Government Act 1993 and the Environmental Planning and Assessment Act 1979, for example the power to issue orders.

Should clean-up and prevention notices specify technical solutions to pollution problems?

In general terms, the role of councils is to require stated environmental problems to be addressed, not to specify particular means of solving those problems. In matters where Council has expertise, it may give general advice on how to solve a problem. In other matters, clean-up and prevention notices can require expert reports to be prepared that propose technical solutions to particular problems.

What can councils do about noise problems? (Clean-up notices can only be issued regarding 'pollution incidents', and pollution incidents do not include sets of circumstances involving only the emission of any noise).

If the set of circumstances causes or is likely to cause a noise problem and a waste, water pollution or air pollution problem, then council can issue a clean-up notice. The clean-up notice can address the noise issue, as well as the other pollution or waste management problems. (Note that if a council issues a clean-up notice, a fee of $320 is payable to council.)

In other circumstances a noise control notice, noise abatement direction, prevention notice, penalty notice or prosecution (or other action under POEO Act Parts 5.4 and 5.5) may be appropriate.

What costs can be recovered through a compliance cost notice, and how should they be calculated?

Any reasonable costs incurred in monitoring or enforcing clean-up and prevention notices can be recovered through a compliance cost notice. To this end, councils should keep accurate records of tasks undertaken, the staff hours to undertake those tasks and any 'out of pocket' expenses incurred. Compliance cost notices can also recover the reasonable costs of monitoring and enforcing noise control notices.

How can councils resource their environmental responsibilities?

Some avenues for cost recovery are as follows:

• Prevention, clean-up and noise control notice fees ($320). (Alternatively, under section 608 Local Government Act 1993, a council can recover its entry and inspection costs where the council exercises statutory authority to require remediation work)
• Compliance cost notices in respect of monitoring action and ensuring compliance with prevention, clean-up and noise control notices
• Retention of penalties from penalty notices
• Retention of fines from prosecutions
• Recovery of inspection fees under section 608 Local Government Act 1993. For example a Council may charge a fee to periodically inspect industrial premises where this is necessary to carry out pollution and waste management functions. (Note that inspection fees would need to be publicly notified in accordance with sections 612 and 705 of the Local Government Act.)
• Rates: A council should consider whether the allocation of ordinary rates to fund environmental management functions is adequate.  Ordinary rates are raised from all landowners to fund the general functions of the council.  The council may also consider raising an environmental special rate (section 495 Local Government Act).  Special rates are raised from those landowners that benefit from or give rise to the need for special works and services. Special rates may be raised for ongoing management functions (environmental monitoring) or for time limited services (eg land acquisition and capital works).  Where a proposed increase in rates may exceed the council's overall rate ceiling the community must be consulted and the approval of the Minister for Local Government must be obtained (section 508(2) Local Government Act). In recent years several councils have obtained the Minister's approval to raise environmental special rates in respect of stormwater management, catchment management and remediation, and non-domestic waste management.
• Developer contributions may be chargeable under:
  • Section 64 Local Government Act (in relation to the subdivision or development of land which gives rise to the need for council water supply, sewerage or stormwater drainage works), and/or
  • Section 94 Environmental Planning and Assessment Act 1979 (in relation to the subdivision or development of land which gives rise to the need for council public amenities and services identified in a contributions plan – see Section 94 Contributions Plan Manual, Department of Urban Affairs and Planning, 1997).
• Where a council issues an order under section 124 of the Local Government Act, but the recipient fails to carry out the work required under the order, and the council carries out the work, the council can seek to recover its costs and expenses as a debt (section 678).

What should a council do if it wants to issue a clean-up or prevention notice, but the response action constitutes 'development' under the planning legislation for which must development consent be obtained?

Council should make sure that the deadline(s) for compliance stated in the notice allow for the development application and determination process to take place.

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Waste management

What are the regulatory controls regarding waste management for an activity that does not need a licence?

The requirements under POEO are made by the POEO (Waste) Regulation 2005.

What are the main regulatory provisions for waste management?

The main regulatory provisions for waste management are:

• Section 6 and Schedule 1, POEO Act (licences, including new or amended provisions regarding liquid waste, and activities conducted by mobile plant)

• Parts 5.6 and 5.7, POEO Act (waste offences)

• other provisions of POEO Act (clean-up notices and fees, prevention notices and fees, investigation powers and other broader environmental management provisions also relevant to waste management)

• POEO (General) Regulation 1998 (licence fees and licence administration)

• POEO (Waste) Regulation 2005 (general requirements relating to record keeping, contributions, immobilisation, asbestos waste, clinical waste and non-licensed waste facilities, waste activities and transporters)

• POEO (Penalty Notices) Regulation (penalty notices for waste offences)

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Duty to notify the appropriate regulatory authority (ARA) of pollution incidents causing or threatening material harm to the environment (POEO section 148)

What is the duty to notify?

See Duty to notify.

1. Must the Fire Brigade notify the ARA at hazardous material (HazMat) incidents?
2. Who must notify the ARA at a HazMat incident in which the person who caused or was involved in the incident is seriously injured or killed?
3. How can councils gain expertise to deal with a wide range of chemicals that may be involved in highway spills?

1. The duty to report pollution incidents applies to persons carrying on an activity, occupiers, employees and others in the circumstances stated in section 148. In most cases the Fire Brigade would not come within those categories. However the Fire Brigade routinely notifies the EPA of HazMat pollution incidents causing or threatening material harm to the environment. Where the EPA is not the ARA, EPA informs the local council.
2. The persons listed in section 148 have a duty to report. The ARA would consider all the circumstances (including, for example, physical incapacity) before taking action in respect of failure to comply with the duty. The duty to notify is intended to make sure that the ARA is able to respond to pollution incidents quickly.
3. The Fire Brigade is the combat agency in NSW in respect of hazardous material incidents. Councils, however, may have a role in dealing with materials once the Fire Brigade has rendered them safe. Note that under the Environmental Trust Act 1998, which commenced on 9 November 1998, up to $500,000 can be expended annually in respect of costs of pollution clean-up in emergencies, including waste material that has been placed or disposed of on premises unlawfully. This may be of assistance to councils in dealing with emergency clean-ups and some orphan waste material incidents.  Guidelines for Applying for Trust Funds Towards Emergency Clean-Up Costs are available and can be downloaded in PDF format: epcup.pdf (16 kb). Further information: EPA Hazardous Materials Advice Unit, tel (02) 9995 5000.

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Contaminated land

What information regarding contaminated land must councils report in planning certificates under section 149(2) of the Environmental Planning and Assessment Act 1979?

In section 149(2) planning certificates a council must report any current declarations, orders and voluntary proposals, and the existence of any site audit statements provided to the council by the EPA under the Contaminated Land Management Act 1997 (section 59). A council may, in a planning certificate, include advice on other matters affecting the land, for example the existence of any council policy that restricts certain development of the land because of the risk of contamination. For further information, see the Planning Guidelines for Managing Contaminated Land - SEPP55 Remediation of Land (1998), jointly published by the EPA and the Department of Urban Affairs and Planning (now known as the Department of Planning) and available online at www.dipnr.nsw.gov.au or for purchase from that Department's Information Centre.

Does the Contaminated Land Management Act 1997 (CLM) replace the Unhealthy Building Land Act 1990 (UBL)?

No, the CLM Act does not replace the UBL Act. The UBL Act was originally drafted with flood-prone and low-lying land issues in mind, and was repealed on 28 April 2003 by the Statute Law (Miscellaneous Provisions) Act (No 2) 2002. The UBL Act prohibited building on unhealthy building land (ie certain land identified as low-lying or flood-prone, or potentially contaminated) and provided for the issuing of certificates as to whether land has been declared to be unhealthy building land. Prior to its repeal, the UBL Act was rarely used as development is now effectively regulated under other environmental and planning legislation. As part of the transition the EPA has developed an unhealthy building land policy for councils to use. Planning certificates issued under s 149 of the Environmental Planning and Assessment Act 1979 will note whether the policy applies to the relevant land. For more information, see Unhealthy Building Land Act.

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Further training

What resources are available to councils regarding noise control?

In 2000 the EPA sent to every local council a video on noise control, Managing Neighbourhood Noise, specifically for local government officers. The video is 23 minutes long and consists of four scenarios illustrating different types of neighbourhood noise problems:

• The spa pool pump
• Amplified music
• Industrial exhaust system
• Car alarm sounding

A worksheet is enclosed with the video with questions regarding each of the scenarios. Copies of the video were sent to all councils in NSW.

In 2004, the DEC released the Noise Guide for Local Government, which aims to provide practical guidance to council officers in the day-to-day management of local noise problems and in the interpretation of existing policy and legislation.

In addition to these resources a course is conducted by University of Western Sydney (UWS) entitled Noise Assessment and Control.  It is a 14 week distance learning program with a 4 day residential workshop and provides training in noise measurement and noise-impact assessment. Contact UWS on 02 4570 1201 for further details.

What further training and support is available to councils, particularly in rural areas?

• SD Environmental provides training for local government authorised officers.
• The New Environmental Protection Legislation short course is available on a commercial basis through 3 training providers licensed by the EPA in 1999:
  • Local Government and Shires Associations (contact: Ruth Stevenson, LGSA Learning Manager, Ph: 02 9242 4000, Fax: 02 9242 4111; rstevenson@lgsa.org.au
  • Macquarie Research Ltd (contact: Kerry Tilbrook, Training Manager, Ph: 02 9850 8237, Fax: 02 9850 8128,  KTilbrook@mrl.mq.edu.au)
  • NSW TAFE (contact: Lynda Payne,Business Manager, Ph: 02 4936 0395, Fax: 02 4936 0370, e-mail: lynda.payne@tafensw.edu.au)
• Additionally, the EPA has licensed University of Western Sydney and NSW TAFE to develop and deliver a new EPA-approved course, Protection of the Environment, Authorised Officers. This 60-hour course is aimed principally at local government officers (and some relevant State agencies) and is being delivered around NSW from June 2001 onwards. For more information and to make a booking contact: Katie Hayes, University of Western Sydney, ph 4570 1455 or Nicola Foster, TAFE, ph 4936 0309.
• Litter training - the EPA has licensed a private training provider until June 2002 to deliver training on the enforcement of the new litter laws. For more information, contact Gems Pty Ltd, PO Box 1221, Burwood NSW 1805, Ph: 02 9744 5252, Fax: 02 9747 8366, e-mail: jmcgraw@gemspl.com.au.
• Helpful information about the new legislation on this web site, including:
  • Authorisation of Council Officers, and
  • Powers of Authorised Officers.

For further information, contact the nearest metropolitan or regional EPA office.

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Commencement dates

When did the Protection of the Environment Operations Act 1997 (POEO Act) commence?

The POEO Act commenced on 1 July 1999 (NSW Government Gazette, 23 December 1998).

How can I get a copy of the POEO regulations?

The regulations are available from the Department of Commerce (telephone 1300 656 986), or online from the NSW Legislation website

When did the contaminated land reforms commence?

The Contaminated Land Management Act 1997 (except section 60 – duty to report contamination) and the Contaminated Land Management Regulation 1998 was fully commenced by 1 September 1998. The other elements of the Government's contaminated land reform package, namely SEPP 55 and revised Planning Guidelines for Contaminated Land, was fully commenced by 1 September 1998. Section 60 commenced on 1 July 1999.