Protection of the Environment Operations Act 1997
The Protection of the Environment Operations Act 1997 (POEO Act) is the key piece of environment protection legislation administered by the EPA.
See the EPA Act summaries page for specific information about other Acts administered by the EPA, and for information on the regulations made under those Acts and under the POEO Act.
Commencement of the POEO Act
The POEO Act commenced operation on 1 July 1999.
The POEO Act repealed the following Acts with effect from 1 July 1999
- Clean Air Act 1961
- Clean Waters Act 1970
- Environmental Offences and Penalties Act 1989
- Noise Control Act 1975
- Pollution Control Act 1970
The major regulatory provisions of the Waste Minimisation and Management Act 1995 were also repealed by the POEO Act, but are now incorporated within the POEO Act.
Major features of the legislation
Protection of the environment policies (PEPs)
The POEO Act enables the Government to set out explicit protection of the environment policies (PEPs) and adopt more innovative approaches to reducing pollution. PEPs are instruments for setting environmental standards, goals, protocols and guidelines. They provide both the framework for Government decisions that affect the environment and the means of adopting Australia-wide environment protection measures set by the National Environment Protection Council. Before a PEP can be made, the POEO Act requires public consultation on the draft PEP, and an analysis of the economic and social impact of the PEP.
Integrated environment protection licensing
The POEO Act provides a single licensing arrangement to replace the different licences and approvals under existing separate Acts relating to air pollution, water pollution, noise pollution and waste management. See Licensing for more detailed information about environment protection licensing under the POEO Act.
Regulation of scheduled and non-scheduled activities
The EPA is the appropriate regulatory authority for the activities specified in Schedule 1 of the POEO Act (scheduled activities). In most cases, local councils are the regulatory authorities for non-scheduled activities, except activities undertaken by a public authority which the EPA will regulate or where a public authority has been declared the appropriate regulatory authority (see Chapter 7: Part 1 - Protection of the Environment Operations (General) Regulation 2009). The EPA licenses scheduled activities. In general, local councils can regulate non-scheduled activities through notice and enforcement powers in their local government area. However, the EPA can issue a licence to regulate water pollution from a non-scheduled activity. If it does, the EPA becomes the regulator for all environmental impacts from the activity under the POEO Act instead of the local council.
The Sydney Catchment Authority has similar powers to an appropriate regulatory authority under the POEO Act for non-scheduled activities in relation to a catchment area (see Sydney Water Catchment Management (Environment Protection) Regulation 2001).
Factors to be considered when deciding if a licence is to be granted include (see section 45 of the POEO Act)
- the objectives of the EPA in section 6 of the Protection of the Environment Administration Act 1991, including ecologically sustainable development principles
- the impact on the environment of any pollution likely to be caused by an activity or work
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
Licences are usually issued with conditions. Examples of conditions that can be attached to a licence are in the POEO Act. These include requirements to monitor, to provide certification of compliance with a licence, to undertake and comply with a mandatory environmental audit program and pollution studies, reduction programs and financial assurances.
Licences are no longer fixed-term annual licences but remain in force until suspended, revoked or surrendered. The EPA must review the licence at least once every five years, and give public notice of its intention to do so.
Integration of licensing and planning processes
Integration of EPA licensing with the development approval procedures under the Environmental Planning and Assessment Act 1979 provides for public participation in the environmental assessment of activities that may be licensed by the EPA
Environment protection notices
Clean-up notices, prevention notices and prohibition notices are the environment protection notices which are provided for under the legislation.
- Clean-up notices may direct an occupier of premises at or from which the appropriate regulatory authority (usually the EPA or local council) reasonably suspects that a pollution incident has occurred, or a person reasonably suspected of causing or having caused pollution, to take clean-up action specified in the notice.
- Prevention notices can be issued if the appropriate regulatory authority reasonably suspects that any activity has been or is being carried on in an environmentally unsatisfactory manner at any premises or by any person. Prevention notices require that action specified in the notice be taken. There is a right of appeal to the Land and Environment Court.
- Only the Minister can issue a prohibition notice, on the recommendation of the EPA or the Sydney Catchment Authority, directing that an activity cease for a period specified in the notice.
Fees (see Clause 99 of the Protection of the Environment Operations (General) Regulation 2009) are payable for the issuing of clean-up and prevention notices. Local councils retain these fees. EPA notice fees are paid into consolidated revenue. Compliance cost notices can be issued to the recipient of a clean-up or prevention notice to recover the reasonable costs and expenses incurred by the authority in monitoring and ensuring that the action required by the clean-up or prevention notice is carried out.
Environment protection offences and penalties
The classification of offences as Tier 1, 2 or 3 continues under the POEO Act. The offences are similar to the previous offence regime.
- Tier 1 offences continue as the most serious offences. These are the wilful or negligent disposal of waste causing or likely to cause harm to the environment (section 115), wilfully or negligently causing a substance to leak, spill or otherwise escape in a manner that harms or is likely to harm the environment (section 116), and the wilful or negligent emission of an ozone-depleting substance in breach of the Ozone Protection Regulations in a manner that harms or is likely to harm the environment (section 117).
Tier 1 offences can attract penalties of up to $5 million and 7 years gaol.
- Tier 2 offences are set out according to the medium involved. Water pollution is prohibited under section 120 (previously section 16 of the Clean Waters Act). It is a defence in any court proceedings for water pollution that an environment protection licence or the regulations regulated the pollution and that the conditions attached to the licence or the regulations were not contravened. Air and noise pollution offences are similar to those in the repealed legislation. Waste offences include littering, unlawful transporting of waste and permitting land to be used unlawfully as a waste facility.
Land pollution is prohibited under section 142A. It is a defence in any court proceedings for land pollution that an environment protection licence or the regulations regulated the pollution, and that the conditions of the licence were not contravened. Other defences include defences related to use of pesticides and fertilisers.
The maximum penalties for the Tier 2 offence of failing to notify a pollution incident are $2 million in the case of a corporation and $500,000 in the case of an individual. The maximum penalties for Tier 2 offences other than failure to notify pollution incidents are $1 million in the case of a corporation and $250,000 in the case of an individual. Further daily penalties apply to continuing offences.
- Tier 3 offences are dealt with by penalty notices (sometimes known as 'on-the-spot fines' or 'penalty infringement notices'). These notices impose a fine that can be paid or can be defended in court.
The maximum possible penalty that a penalty notice can impose may not exceed the maximum penalty that can be imposed by a court for the offence. The Protection of the Environment Operations (General) Regulation 2009 lists the Tier 2 offences that can be dealt with by penalty notice.
Duty to notify pollution incidents
There is a duty to notify 'relevant authorities' as specified in section 148(8) of the POEO Act (the EPA, local authority, Ministry of Health, SafeWork NSW (formerly WorkCover) and Fire and Rescue NSW) of pollution incidents where material harm to the environment is caused or threatened. Material harm includes actual or potential harm to the health or safety of human beings or to ecosystems that is not trivial or that results in actual or potential loss or property damage of an amount over $10,000. Failure to do so is an offence.
However, any notification is not admissible in evidence against the person for an offence or for the imposition of a penalty. The duty to notify applies to the person carrying on the activity, an employee carrying on the activity and the occupier of premises where the incident occurs.
Duty to prepare and implement pollution incident response management plans
Licence holders have a duty to prepare, test, implement and keep pollution incident response management plans in accordance with Part 5.7A of the POEO Act. The EPA may direct other persons to prepare pollution incident response management plans.
The POEO Act provides that mandatory audits may be required as a condition of a licence if the EPA reasonably suspects that
the holder of the licence has on one or more occasions contravened the POEO Act, the regulations or the conditions of the licence, and the contravention has caused or is likely to cause harm to the environment, or
an activity is being carried out in an environmentally unsatisfactory manner as defined in section 95 of the Act.
Documents prepared solely for a voluntary environmental audit, unlike those prepared for a mandatory audit, are not admissible in evidence against any person in any proceedings connected with the administration or enforcement of environment protection legislation. Such protection is lifted if the person asserting or relying on the protection uses or relies on the whole or any part of the documents.
Powers of investigation
Authorised officers' powers include powers to require information or records, powers of entry and search of premises, powers to question and identify persons, powers to disable intruder alarms and powers with respect to vehicles and vessels. A person cannot be guilty of failing to comply with a requirement to furnish records or information or answer questions unless the person was warned at the time that a failure to comply is an offence. Enforcement officers (i.e. officers who can issue penalty notices for environmental offences) may also exercise these powers in respect of their functions as enforcement officers under the Act.
Potential self-incrimination is not an excuse for failing to answer questions or provide information. However, information provided cannot be used in prosecution against a person if that person, when giving the information, objected on the ground that it might incriminate the person, or if no warning of the possibility of so objecting was given. This does not apply to corporations or to prosecutions for an offence against Chapter 7 of the Act.
The civil enforcement provisions of the legislation are strengthened for third parties. Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of the POEO Act or the regulations, regardless of whether there is any environmental harm. The EPA is also able to accept court enforceable undertakings given by a person in connection with a matter in relation to which the EPA has a function under the Act.
The Court has wider powers to make orders for restoration and prevention, to order payment of costs, expenses and compensation to a public authority or person suffering loss, and to order payment of the costs of investigation incurred by a regulatory authority and payment of an amount equal to monetary benefits acquired by the offender.
The Court may also order the offender to publicise the offence, to notify certain people of the offence and its consequences (for example in an annual report of a company to its shareholders), to carry out a specified project for the restoration or enhancement of the environment in a public place, to audit its activities, to pay a specified amount to the Environmental Trust or other environmental organisation, to attend a relevant training course or to establish a relevant training course for employees or contractors.
Using regulations, the EPA may develop and implement schemes involving economic measures for environment protection.
There is provision for a public register to be kept by all regulatory authorities, which must include a range of specified information on licences, review of licences, prosecutions, notices and the conclusions of any mandatory audit report. The register must be available for public inspection and copies provided on request. See the EPA's public register.