Overview of legislative provisions for smoke abatement notices
The Protection of the Environment Operations Act 1997 (POEO Act) provides for the issuing of smoke abatement notices.
When may a smoke abatement notice be issued?
An authorised officer of an appropriate regulatory authority (ARA) that is the local authority may issue a smoke abatement notice if it appears to the authorised officer that excessive smoke is being, or has been emitted from a chimney on or in residential premises. The notice must be issued within 7 days of the excessive smoke being emitted (s 135B(1) of the POEO Act).
Section 135A of the POEO Act defines 'chimney', 'excessive smoke' and 'residential premises' in relation to the provisions relating to smoke abatement notices as follows:
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.
A 'local authority' as defined in the Dictionary to the POEO Act includes local councils, the Lord Howe Island Board and the Western Lands Commissioner.
A smoke abatement notice cannot be issued for a chimney that is in or on an incinerator or is used only in relation to smoke originating from outside a residence (s 135B(4)) as these matters are regulated under the Protection of the Environment Operations (Clean Air) Regulation 2010.
The section on Preparing to issue a smoke abatement notice provides suggested methods for making and recording observations of excessive smoke.
Who can be issued with a smoke abatement notice?
The smoke abatement notice may be issued to the person whom the authorised officer believes to be the occupier of the premises (s 135B(1)). This can include the tenant of a rental property.
What does a smoke abatement notice do and how long is it in effect?
A smoke abatement notice directs the person to whom the notice is issued to ensure that excessive smoke is not emitted from the chimney at any time after 21 days following the giving of the notice (s 135B(1) of the POEO Act). This ensures that the householder has a reasonable period of time in which to have the necessary improvements, maintenance or repairs carried out. A smoke abatement notice is issued to prevent the emission of excessive smoke only from the chimney, not all smoke (s 135C(2)).
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 (s 135B(3)). This is to ensure that the smoke abatement notice applies only in the one 'heating season'.
An example of a smoke abatement notice is provided below.
How is a smoke abatement notice given?
An authorised officer of an appropriate regulatory authority which is a local authority must give a smoke abatement notice in writing (s 135B(2)).
Enforcing a smoke abatement notice
It is an offence to fail, without reasonable excuse, to comply with a smoke abatement notice while the notice is in force (s 135C(1)).
Enforcement officers who are officers or employees of a local authority may issue a penalty notice for failure to comply with a smoke abatement notice. The penalty notice imposes a fine of $200 for individuals and $400 for corporations (see cl 6 and Schedule 1 of the Protection of the Environment Operations (Penalty Notices) Regulation 2004). For more serious breaches that are dealt with by a court, the maximum penalty that may be imposed on individuals or corporations is $3300.
Revocation of a smoke abatement notice
Smoke abatement notices can be revoked by the ARA for which the person who gave the notice is an authorised officer (s 135D).