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Environmental Offences (NSW)

Environmental crime under New South Wales law encompasses a wide range of activities that harm the environment. The main piece of legislation that governs environmental offences in the state is the Protection of the Environment Operations Act 1997.

Environmental Protection Authority

The authority is the state’s environmental regulator, responsible for compliance, investigation and enforcement of environmental laws. It administers the Act as well as a range of other legislation, including the:

What are environmental offences?

Offences under the Act are divided into Tier 1, 2 and 3 offences. Court proceedings can be brought by the Environment Protection Authority or other authorities such as police, NSW Maritime, or WaterNSW. Authorised officers have powers to require information or records be provided, to enter and search a premises, to question and identify people, and to order actions be taken in relation to  vehicles and boats. The EPA also has a public register which includes prosecutions for environmental offences.

Tier 1

These offences are the most serious and include leaks, spills, ozone-depleting emissions, and illegal disposal of waste. These carry maximum penalties of a $5 million fine for corporations, or a $1 million fine and/or 7 years imprisonment for a person, if the offence was committed intentionally. If it was committed negligently, the maximum penalty is a $2 million fine for a corporation, or a $500,000 fine and/or 4 years imprisonment for a person.

These offences can be dealt with by the Land and Environment Court or Supreme Court. The Act allows for certain orders to be made, such as an order that requires the offender to:

  • publicise their offence;
  • notify specified people of the offence and its consequences e.g. in an annual report to shareholders
  • carry out an environmental project for the benefit of the public;
  • pay a specified amount to the NSW Environmental Trust;
  • attend a training course or establish a course for employees.

Tier 2

These offences make up all other offences under the Act, including water, air land and noise pollution. Examples include the emission of offensive odour from a factory, the unlawful transport of waste and failure to notify the authority of a pollution incident. Tier 2 offences are generally strict liability offences, meaning the prosecution is not required to prove intent.

These carry maximum penalties of a $1 million fine for a corporation, or a $250,000 fine for a person. If the offence continues there are daily penalties of up to $120,000 for a corporation and $60,000 for a person. The maximum penalty for a littering offence is 20 penalty units ($2200).

These offences can be dealt with by the Land and Environment Court or a local court.

Tier 3

These offences can be dealt with by way of a penalty notice under any Act. EPA officers and certain other public authorities can issue penalty notices.

Environment Protection Notices

The Act allows clean-up, prevention and prohibition notices to be issued.

A clean-up notice from an agency (usually the EPA or local council) directs a person or business to take clean-up action specified in the notice after a pollution incident.

A prevention notice is issued when an agency reasonably suspects a person or a company is carrying on an activity in an environmentally unsatisfactory way. The notice specifies the action to be taken. The recipient can appeal to the Land and Environment Court.

A prohibition notice can be issued by the Energy and Environment Minister only, on the recommendation of the EPA or WaterNSW. The notice directs that an activity must stop for a specified period.

The agency issuing the notice charges a fee of $619 to the recipient for the administrative costs of issuing the notice. It is an offence not to pay the fee. The recipient can also be charged compliance costs incurred by the agency in monitoring and ensuring an action required by a clean-up or prevention notice is taken.

For advice or representation in any legal matter, please contact Armstrong Legal.

Sally Crosswell

This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

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