Part 4General environmental duty

Part 4—General environmental duty 25—General environmental duty (1) A person must not undertake an activity that pollutes, or might pollute, the environment unless the person takes all reasonable and practicable measures to prevent or minimise any resulting environmental harm. (2) In determining what measures are required to be taken under subsection (1), regard is to be had, amongst other things, to— (a) the nature of the pollution or potential pollution and the sensitivity of the receiving environment; and (b) the financial implications of the various measures that might be taken as those implications relate to the class of persons undertaking activities of the same or a similar kind; and (c) the current state of technical knowledge and likelihood of successful application of the various measures that might be taken. (3) In any proceedings (civil or criminal), where it is alleged that a person failed to comply with the duty under this section by polluting the environment, it will be a defence— (i) maximum pollution levels were fixed for the particular pollutant and form of pollution concerned by mandatory provisions of an environment protection policy or conditions of an environmental authorisation held by the person, or both; and (ii) it is proved that the person did not by so polluting the environment contravene the mandatory provisions or conditions; or (i) an environment protection policy or conditions of an environmental authorisation provided that compliance with specified provisions of the policy or with specified conditions of the authorisation would satisfy the duty under this section in relation to the form of pollution concerned; and (ii) it is proved that the person complied with the provisions or with such conditions of an environmental authorisation held by the person. (4) Failure to comply with the duty under this section does not of itself constitute an offence, but— (a) compliance with the duty may be enforced by the issuing of an environment protection order; and (b) a clean-up order or clean-up authorisation may be issued, or an order may be made by the Environment, Resources and Development Court under Part 11, in respect of non-compliance with the duty; and (c) failure to comply with the duty will be taken to be a contravention of this Act for the purposes of section 135.