Environmental Legislation Amendment Act 2025

Storage of more than 5 tonnes of waste tyres or more than 500 waste tyres requires a licence under Schedule 1 clause 42 of the Protection of the Environment Operations Act 1997 (POEO Act).  

The ELA Act has made changes to clarify that all waste tyres stored in buildings, fixtures or any other spaces or areas on, above or below on the land or premises must now be included when adding up the volume or amount of waste tyres stored on land or a single property. For example, if waste tyres are stored in several storage units on a property, all of the waste tyres in those units would be included in the total of the waste tyres stored on the property. 

Similarly, the definition of ‘land pollution’ has been amended to now include matter placed in buildings and fixtures, on, above or below the land (including shipping containers). 

The definition of ‘hazardous waste’ in the POEO Act (Sch 1 clause 50) has been amended to include lithium ion waste batteries. The change may mean that a licence for the scheduled activity of ‘waste storage’ will be required where lithium ion waste batteries are being stored and the thresholds that relate to hazardous waste are met (Schedule 1 clause 42). 

In addition, the scheduled activity of ‘livestock processing activities’ (Schedule 1 clause 23) has been amended to clarify that a licence is required for the manufacturing or processing of products derived from the slaughtering or processing of animals.

Potential licensees have until 12 September 2026 to apply for a licence.  

The POEO Act now provides that any obligations imposed under environment protection legislation, including under environment protection licences, cannot be delegated or transferred to another person (see the new s 7A). This means that a licence holder cannot delegate their responsibilities under an environment protection licence to contractors they engage to carry out any aspect of the licensed activity (or activities). 

The ELA Act has made changes to the duty to notify of pollution incidents causing or threatening to cause material harm (POEO Act s 148). In particular: 

• the Ministry of Health no longer needs to be notified (this change commenced upon the Act’s assent on 23 September 2025)
• the threshold for material harm has increased from $10,000 to $50,000 and
• pollution incidents that do not need to be notified may be prescribed in the regulations at a future date. 

The ELA Act has amended the POEO Act (s 30) to allow for protection of the environment policies (PEPs) to be made that apply to any person. Previously, PEPs could only apply to public authorities. As a result of the change, industry and the regulated community, including holders of environment protection licences, may be required to comply with a PEP where they are carrying out any activity specified in a PEP.  

A PEP will be able to set expectations for industry sectors that will apply to the carrying out of those activities. Environment protection licence conditions may also require the licence holder to comply with a PEP and failure to comply would then be a breach of a licence condition (under POEO Act s 64). The POEO Act requires the EPA to carry out public consultation (and any other appropriate consultation) on a draft PEP before recommending that it be made (see POEO Act ss 17 and 18).  

The EPA recently consulted on a ‘Sustainable Construction PEP’ which has not yet been made. That PEP is intended to specifically apply to NSW Government agencies in respect of the delivery of public infrastructure projects. At the commencement of the changes to the PEP provisions, no other PEPs have been made or were in force. 

Two additional considerations must now be taken into account by courts when sentencing offenders (under POEO Act s 241) for an offence under the POEO Act or regulations . These are:  

• the impacts of the offence on Aboriginal cultural values and practices, including impacts on lands, skies, waters, plant and animal species and seas, having regard to the spiritual and cultural significance of the impact of the offence, and
• environment justice principles, defined as the disproportionate impact of any environmental harm caused by an offence on disadvantaged or vulnerable communities.  

 The courts will be required to consider the above matters where they are relevant to the offence. The ELA Act changes apply to sentencing that has not yet occurred as part of proceedings that are in court as at the date of their commencement (12 December 2025). 

Section 216A of the POEO Act now allows for multiple contraventions to be charged separately in circumstances where the court finds they cannot be charged as a single offence, even if the period during which proceedings may commence has ended. The person who instituted proceedings may apply to the court for additional time to file separate charges for the contraventions and the court may grant that time if it considers it just and reasonable in the circumstances. 

The ELA Act has also made changes to: 

• enable conditions of a licence relating to an industrial chemical to have regard to the Industrial Chemical Environmental Management Standard (IChEMS) Minimum Standards (POEO Act s 296(1)(c))
• include the carrying out waste-related scheduled activities (including ‘waste storage’ and or ‘waste disposal’), without a licence (in breach of s 48 of the POEO Act) in the list of offences to be treated as repeat waste offences (POEO Act s 144AB).
• clarify the resource recovery order offence (POEO Act s 286A)
• remove regulation of certain veterinary chemicals to the Department of Primary Industries and Regional Development under the Stock Medicines Act 1989
• amend the definition of ‘statutory site audit’ in the Contaminated Land Management Act 1997 (CLM Act) to clarify that a site audit statement is not needed for any requirement imposed in an instrument made or issued under the POEO Act, unless expressly specified (CLM Act s 47).  

The POEO Act now includes a new power (s 91AA) for an appropriate regulatory authority (ARA) that has issued a clean-up notice to:  

• restrict access to premises to allow clean-up action or for
• human health risk reasons (ancillary directions) 

The direction may either be published on a NSW Government website or, in an emergency, displayed in a prominent place in or adjacent to the premises (and published as soon as practicable afterwards). 

The POEO Act now includes a new offence (s 320B) for harassing EPA and local council officers and employees who:  

• are or have previously administered or exercised functions under environment protection legislation, or
• other legislation relevant to native forestry, including the Forestry Act 2012, Biodiversity Conservation Act 2016 and Local Land Services Act 2013, or
• legislation that is prescribed in the regulations at a future date. 

 The maximum penalties for the offence are $2,000,000 for a corporation (and a further $240,000 for each day the offence continues) or $500,000 for an individual (and a further $120,000 for each day the offence continues). 

The POEO Act now includes a new power (s 108B) allowing the ARA who has issued a clean-up or prevention notice to apply to the Registrar-General to register the notice on the certificate of title for the relevant property. The Registrar-General must, on receipt of the application and ta copy of the notice, register the notice on the title to the land. This change enables future purchasers of the land to be made aware of relevant environmental issues affecting the land prior to purchase. 

Timeframes for noise abatement directions have now changed (ss 276 and 277). The period within which noise abatement directions may be issued has been extended from 7 to 10 days, and the period in which they remain in force has been extended from 28 days to 40 days.  

Preliminary investigation notices under the POEO Act may now be issued by the EPA in relation to significantly contaminated land and land notified as contaminated under s 60 of the CLM Act. 

Monies obtained or recovered under a financial assurance or enforceable undertakings for the purposes of completing any relevant works or funding environmental projects can now be received by and expended from the EPA Fund (POEA Act s 34A).