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