New South Wales: Protection of the Environment Operations Act 1997 (NSW)

Protection of the Environment Operations Act 1997 No 156 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, (vi) the proper environmental management of chemicals throughout their whole lifecycle, (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 (c1) activities carried on by an authorised network operator (within the meaning of the Electricity Network Assets (Authorised Transactions) Act 2015) whether at premises occupied by the authorised network operator 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 certain 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 2012 prevails The provisions of, or made under, the Marine Pollution Act 2012 (except Part 8), 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 (Repealed) 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 (1) Before making a policy, the EPA must publish a notice about the proposal to make the policy. (2) The notice must be published— (a) on the EPA's website, and (b) if the EPA considers it necessary to publish the notice in other ways to bring the notice to the attention of members of the public generally or in a particular part of the State—in other ways the EPA is satisfied are likely to bring the notice to the attention of members of the public generally or in that part of the State. (3) The notice must— (a) state the objects of the proposed policy, and (b) advise where a copy of the proposed policy and impact statement may be obtained, and (c) invite submissions to the EPA on the proposed policy and impact statement within a period, not less than 3 months after the day on which the notice is published on the EPA's website, specified in the notice. 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 Secretary of the Department in which the Environmental Planning and Assessment Act 1979 is administered 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 9.1 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, Note. See section 83 for provisions relating to the determination of whether a person is a fit and proper person for the purposes of this section. (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 Biodiversity Conservation Act 2016 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—$2,000,000 and, in the case of a continuing offence, a further penalty of $240,000 for each day the offence continues, or (b) in the case of an individual—$500,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues. Note. An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A. (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—$2,000,000 and, in the case of a continuing offence, a further penalty of $240,000 for each day the offence continues, or (b) in the case of an individual—$500,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues. Note. An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A. 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—$2,000,000 and, in the case of a continuing offence, a further penalty of $240,000 for each day the offence continues, or (b) in the case of an individual—$500,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues. Note. An offence against subsection (2) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169. (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 or infrastructure under Part 3A or Division 5.2 of that Act. existing use has the same meaning as in Division 4.11 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 4.46 of the Environmental Planning and Assessment Act 1979 is subject to Division 4.8 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) The 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) The 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. 55 Grant or refusal of application (1) The appropriate regulatory authority may— (a) in relation to an application for the issue of a licence— (i) grant the application by issuing the licence, or (ii) refuse the application, and (b) in relation to an application for the transfer of a licence— (i) grant the application by transferring the licence, or (ii) refuse the application. (2) The appropriate regulatory authority must not refuse the 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. (3) If the appropriate regulatory authority grants an application for the transfer of a licence, the licence is, subject to any variation of the conditions of the licence under section 58(4), transferred subject to the conditions to which the licence is subject at the time of the transfer. 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 the licence. (2) A variation includes the following— (a) attaching a condition to a licence, whether or not conditions are already attached to the licence, (b) substituting, omitting or amending a condition of a licence. (3) A licence may be varied— (a) on application and payment of the fee prescribed by the regulations by the holder of the licence, or (b) on the initiative of the appropriate regulatory authority. (3A) The regulations may also provide for the waiver or refund of the fee in the circumstances prescribed by the regulations. (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—$2,000,000 and, in the case of a continuing offence, a further penalty of $240,000 for each day the offence continues, or (b) in the case of an individual—$500,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues. Note. An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169. (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) This section extends to conditions to which the suspension, revocation or surrender of a licence is subject under section 81, including a condition varied under section 81A. (4) For the purposes of subsection (3), a reference to the holder of the licence includes a reference to— (a) the former holder of the licence, and (b) another person required to comply with the condition or to whom the condition applies. 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—$2,000,000, or (b) in the case of an individual—$500,000. (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— (a) for a corporation—$1,000,000, or (b) for an individual—$500,000. (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. (6) Publication of results of monitoring The holder of a licence subject to a condition referred to in subsection (1) (a) must, within 14 days of obtaining monitoring data as referred to in that subsection— (a) if the holder maintains a website that relates to the business or activity the subject of the licence—make any of the monitoring data that relates to pollution, and the licensee's name, publicly and prominently available on that website in accordance with any requirements issued in writing by the EPA, or (b) if the holder does not maintain such a website—provide a copy of any of the monitoring data that relates to pollution, to any person who requests a copy of the data, at no charge and in accordance with any requirements issued in writing by the EPA. Maximum penalty— (a) for a corporation—$20,000, or (b) for an individual—$10,000. (7) False or misleading publication of results A person who makes available or provides monitoring data in accordance with subsection (6) is guilty of an offence if the monitoring data is false or misleading in a material respect. Maximum penalty— (a) for a corporation—$20,000, or (b) for an individual—$10,000. Note. An offence against subsection (2) or (4) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169. 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 schemes for economic measures and environmental monitoring programs 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, or (d) environmental monitoring programs, as referred to in Part 9.3, 9.3A, 9.3B or 9.3C. 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). 69A Chapter extends to licence conditions relating to chemicals This chapter extends to the exercise of a function relating to licence conditions under Part 9.3E. 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) not less than 1 month, and not more than 6 months, before the review is undertaken, a notice of the review of each licence is to be published on the website of the EPA, (b) (Repealed) (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) t