Environmental Protection (Solid Fuel Heater and Firewood) Regulations 2018

The central concept is the “solid fuel heater” defined in regulation 3(1) as a domestic solid burning appliance to which AS/NZS 4012 and AS/NZS 4013 apply, regardless of age or whether new or used. This definition captures all heaters of that type, including second-hand units sold privately or through dealers. The “solid fuel heater standards” are the specific efficiency and emission benchmarks set out in those standards: AS/NZS 4012 section 9 (efficiency) and AS/NZS 4013 section 7 (emissions). The regulations use a transitional table: until 7 August 2019, a lower threshold applied (section 9.1.1(a) and section 7.1.1(a) and 7.1.2(a)); from 8 August 2019, a stricter threshold applies (section 9.1.1(b) and section 7.1.1(b) and 7.1.2(b)). This phased approach allowed existing stock and older designs to be sold for a limited period but now only heaters meeting the higher standard can be sold. Compliance is presumed if a heater of the same make and model passed testing (regulation 5(3)), or if the differences between an old and new model are such that under AS/NZS 4012 section 8.5 and AS/NZS 4013 section 9 retesting is not required (regulation 5(4)). The “green firewood” concept in Part 3 operates on internal moisture content measured on a wet basis, with the method prescribed by the CEO’s published instructions. The geographic limitation of the green firewood ban to the defined Perth region means sellers outside that area are not restricted, creating a de facto market distortion: a firewood seller in Kalgoorlie can sell green wood without restriction, but a seller in Armadale cannot. The permit system under regulation 12 gives the CEO complete discretion to grant or refuse a permit “as the CEO thinks fit” and to impose any conditions. There is no right of review or appeal stated in the regulations, so a refused applicant’s only recourse would be to judicial review on administrative law grounds. The “painted or treated firewood” prohibition in Part 4 is absolute: any wood that is painted, plastic-coated or chemically treated is banned from sale as domestic firewood, regardless of moisture content. The definition of “treated” is not further defined, so it would cover timber treated with preservatives, oils, or any chemical substance. The regulations also provide for inspection and testing of heaters being offered for sale, but only for marking compliance (regulation 7(1)). For substantive compliance (emissions and efficiency), the inspector must have a reasonable belief of non-compliance before issuing a test notice (regulation 7(2)). The CEO may authorise persons to conduct testing under regulation 8(b), offering an alternative to NATA-registered labs, which may reduce costs or create capture risk depending on who is authorised.

These regulations primarily affect two groups: sellers of solid fuel heaters and sellers of domestic firewood. Heater sellers include manufacturers, importers, wholesalers, retailers, and private individuals selling second-hand heaters. The definition of “heater” includes used appliances, so a person selling a wood heater on Gumtree or at a garage sale must ensure it meets the solid fuel heater standards, unless it is installed in and sold with a building (regulation 5(2)). This exemption for building-integrated sales means that a house sale including a wood heater is not caught, but a separate sale of a heater is. The regulations affect second-hand dealers and recyclers who commonly sell old heaters; they must either verify compliance (often impossible without expensive testing) or cease selling. The cost of testing a single heater model at a NATA-registered lab can be several thousand dollars, and if the model hasn’t been tested before, compliance is uncertain. Small businesses and independent retailers are disproportionately affected because they lack the scale to absorb testing costs across many units. The green firewood restrictions affect firewood merchants operating within the defined area, including retailers, wholesalers, and stockpilers. Farmers, forestry contractors, and small operators cutting firewood for sale must measure moisture content to the CEO’s method, store wet wood separately, and mark it clearly. The permit system adds an administrative hurdle: an application must be in a form approved by the CEO and include any information required. Permits are discretionary and can be revoked for any reason the CEO considers appropriate (regulation 13(2)(b)), creating uncertainty for businesses that rely on a continued supply of green wood. Indigenous communities or individuals collecting firewood for personal use are not affected because the prohibition is on selling. However, anyone selling firewood casually (e.g., from a roadside stall) is caught. The regulations also affect the CEO and authorised officers, who gain powers to issue test notices, approve forms, publish measurement instructions, and issue or revoke permits. The amendment to Schedule 6 of the principal regulations means that enforcement officers can issue infringement notices (on-the-spot fines) for breaches, simplifying enforcement but reducing due process for alleged offenders. Energy consumers are indirectly affected because compliance costs may be passed on through higher heater and firewood prices, and reduced supply of green firewood (which often splits more easily and is preferred by some users) may shift demand to dried wood or alternatives. The regulations do not affect installers or users of heaters directly (no user bans), but the reduction in available heater models may limit consumer choice. The painted/treated firewood ban affects businesses that sell demolition timber, pallet wood, or treated pine offcuts for firewood. Many small operators rely on selling such wood cheaply; the absolute prohibition will eliminate that market entirely within the regulated area, potentially increasing waste disposal costs.

The primary duty is on any person selling a solid fuel heater: do not sell unless it complies with the efficiency and emission standards and is correctly marked. The duty applies regardless of whether the seller is a business or an individual. A seller also has a duty not to mark a heater as compliant if they know or ought reasonably to know it is not (regulation 6). This imports an objective knowledge standard; a seller who relies on a manufacturer’s claim without verification may still be liable if they should have known the claim was false. If an inspector issues a written notice under regulation 7(2), the seller must have the heater (or another of the same make and model) tested and provide results within the specified time. Failure to comply is an offence with a $5,000 penalty. The seller has the right to choose the testing facility, but it must be NATA-registered or CEO-authorised. There is no explicit right to challenge the inspector’s reasonable belief, but the seller could refuse to test and defend a prosecution on the basis that the belief was not reasonable. For firewood sellers, the key duty is not to sell green wood (moisture >20% wet basis) unless under a permit, and not to sell painted or treated wood. A person keeping wet wood for future sale must keep it separate from dry wood and clearly label it as not for sale. Failure to label carries the same $5,000 penalty. The firewood seller also has a duty to measure moisture content in accordance with the CEO’s published instructions. That document is not included in the regulations but must be obtained from the department’s website. The permit holder has a duty to notify the CEO of any change in information provided in the application (regulation 12(4)). The permit applicant has a right to reasons if the CEO refuses a permit (regulation 12(3)), but no right to a hearing or appeal. On revocation, the holder gets 21 days to respond and the CEO must have due regard to the response, but that does not guarantee a decision in the holder’s favour. There is no provision for internal review or merits review by the State Administrative Tribunal. The CEO effectively has unrestrained discretion to grant, condition or revoke permits. For both heater and firewood sellers, there is a right to sell heaters that are installed in a building (regulation 5(2)) and a right to sell green firewood to wholesalers or retailers (regulation 10(b)). The wholesaler/retailer exemption suggests the regulations focus on end consumers, but the stockpiling restriction applies to anyone keeping wood for future retail sale, so wholesalers are not exempt from that. The rights of affected persons to challenge enforcement action are limited to the general law: judicial review for jurisdictional error or unreasonableness, and possibly a defence in prosecution proceedings that the standard was not properly applied.

Each substantive prohibition carries a maximum fine of $5,000. This applies to: sale of a non-complying heater (regulation 5(1)); false markings (regulation 6); failure to comply with a testing notice (regulation 7(3)); sale of green firewood without a permit (regulation 10); stockpiling green firewood without proper separation and marking (regulation 11); failure to notify CEO of change in permit application details (regulation 12(4)); and sale of painted or treated firewood (regulation 15). A $5,000 fine is a relatively modest penalty for a corporation but significant for an individual trader. However, the regulations also provide for infringement notices (on-the-spot fines) under the amended Schedule 6 of the Environmental Protection Regulations 1987. The modified penalties are $250 if paid within 28 days and $500 after 28 days, for each of the seven listed offences. These are much lower than the court-imposed maximum, creating an incentive for alleged offenders to pay rather than contest. The enforcement mechanism relies heavily on inspectors who may inspect heaters for marking compliance and issue testing notices for suspected non-compliance. The inspector is not required to have reasonable suspicion of emissions non-compliance before issuing a notice; only that they “reasonably believe” the heater does not comply with the solid fuel heater standards. That belief could be based on visual inspection, brand reputation, or other grounds. If the seller fails to test or provide results, the inspector may refer the matter for prosecution. The CEO’s powers over green firewood permits are effectively self-enforcing: if a permit is revoked, the seller must immediately cease selling green wood or face a $5,000 fine per sale. There is no criminal penalty for selling under a revoked permit before notice is given, but the revocation notice takes effect immediately or at a stated date. The CEO also has the power to approve the form for permit applications and to publish the moisture measurement instructions. Failure to measure according to those instructions could lead to a prosecution for selling green wood even if the seller’s own method shows lower moisture. The prohibition on painted/treated firewood is strict liability; no knowledge or intent is required. A seller who inadvertently sells painted wood (e.g., from a batch of mixed demolition timber) is liable. The penalties are fines only, not imprisonment, reflecting the regulatory nature. However, each sale is a separate offence, so a person selling many pieces of non-compliant firewood could face multiple fines. The regulations do not provide for suspension of business licenses or property forfeiture. Enforcement is likely to be complaint-driven or targeted at known non-compliant operators, given the practical difficulty of policing every firewood vendor or second-hand heater seller.

These regulations are made under the Environmental Protection Act 1986 (WA). They sit within a broader framework of air quality regulation. The repealed 1998 regulations similarly restricted firewood moisture content and heater standards, but had a wider geographic application covering all of Western Australia. The new regulations narrow the green firewood restrictions to a defined Perth region. This means that outside that area, the only applicable state-wide restrictions on firewood sales would be general environmental laws or local government health regulations. The regulations also amend the Environmental Protection Regulations 1987 by inserting a new item in Schedule 6, which sets modified penalties for infringement notices. That schedule applies to a range of environmental offences under the principal regulations, so the new item integrates seamlessly. There is no interaction with the Competition and Consumer Act 2010 (Cth) or the Australian Consumer Law explicitly, but the marking requirements for heaters (name, address, test year) overlap with product safety and consumer information obligations. A heater seller must comply with both regimes. The prohibition on false markings (regulation 6) mirrors false or misleading representation provisions in the Australian Consumer Law, but the state regulation provides a separate penalty. There is no interaction with building codes or installation standards; the regulations only address sale, not use. However, a heater that cannot be sold new will eventually reduce the pool of eligible heaters available for installation, potentially affecting compliance with building regulations that may require emissions standards. The green firewood restrictions may interact with native vegetation clearing laws if firewood is sourced from conservation areas, but that is indirect. The painted/treated firewood ban overlaps with waste management and hazardous substance regulations. Wood treated with chemicals like CCA (copper chrome arsenate) is already restricted from burning in many states due to toxicity; these regulations reinforce that prohibition but do not specify what constitutes “treated”. The permit system under Part 3 does not interact with other permit systems (e.g., native title, forestry, local government trading permits) but a seller may need multiple approvals. The CEO’s discretion is not limited by other legislation, creating potential for conflicting decisions. The regulations do not reference the State Administrative Tribunal Act 2004 (WA) or any review rights, so interaction with administrative review is limited to the general law. The amendment to Schedule 6 ensures that enforcement officers can use infringement notices, which is consistent with standard practice under the Environmental Protection Act. There is no interaction with Commonwealth legislation specifically mentioned.

The regulations were gazetted on 31 August 2018 and commenced as follows: Part 1 on 31 August 2018; the rest on 1 September 2018. They are a standalone replacement for the Environmental Protection (Domestic Solid Fuel Burning Appliances and Firewood Supply) Regulations 1998, which were repealed in full by regulation 16. The compilation table in the notes shows no subsequent amendments. The regulations themselves contain transitional provisions: the solid fuel heater standards are phased, with the stricter standards taking effect from 8 August 2019. This was a built-in amendment, not a later legislative change. The regulations refer to AS/NZS 4012:2014 and AS/NZS 4013:2014 as amended from time to time (regulation 3(1)). This means that if Standards Australia issues an amendment or replacement, the state regulation automatically incorporates it without further parliamentary scrutiny. Regulation 3(2) confirms that if a standard is amended or replaced, references to particular sections are to be taken as references to equivalent sections of the amended or replaced standard. This creates a dynamic incorporation of external standards, which could change the compliance requirements without notice from the WA Parliament. Any amendment to AS/NZS 4012 or AS/NZS 4013 after 2018 will alter the content of the regulations. The permit system and measurement instructions are also subject to change by CEO decision, not legislative amendment. The Instructions for measuring the internal moisture content of wood published by the CEO can be updated at any time via the department’s website, and compliance is mandatory. This is a significant delegation of legislative power. The Schedule 6 amendment to the principal regulations changed the penalty infringement notice amounts for the listed offences. The earlier 1998 regulations had their own infringement amounts; the new amounts are $250 and $500. The regulations themselves have not been amended since 2018, but due to dynamic incorporation of standards, their substantive effect may have already shifted. Users should check the current version of AS/NZS 4012 and AS/NZS 4013 to confirm the applicable efficiency and emission criteria.

The source text does not refer to any cases. Litigation specifically under these 2018 regulations would be unlikely to be voluminous given they are relatively recent and regulatory. However, the predecessor 1998 regulations may have generated some enforcement actions but none are mentioned. The lack of a merits review mechanism suggests that most disputes would be in the context of prosecutions (defending a penalty) or judicial review of CEO decisions on permits. No known reported Western Australian decisions are cited in the regulations. The absence of appeal rights from permit decisions may deter litigation but also increases the risk of unresolved disputes. The CEO’s broad discretion under regulation 12(2) to issue permits as “the CEO thinks fit” would make judicial review difficult unless the decision was manifestly unreasonable or procedurally unfair. The 21-day show-cause requirement before revocation provides some procedural protection but does not extend to initial refusal. Potential litigation could also arise from disputes over moisture measurement methodology if the CEO’s instructions are ambiguous or not scientifically robust. The transitional standards in Part 2 (phased from 2018 to 2019) probably caused some confusion about which standard applied to heaters sold between 1 September 2018 and 7 August 2019. However, no reported cases have tested the interpretation. The false marking provision (regulation 6) could be the subject of prosecution if a seller wrongly labels a heater, but again no known cases. The interaction with Australian Consumer Law could lead to dual actions. Overall, the litigation history appears minimal, likely because the $5,000 maximum penalty often makes it uneconomic to contest, and the infringement notice amounts of $250 or $500 encourage settlement. Nonetheless, practitioners advising clients should be aware that there is no published body of case law interpreting specific terms like “treated with any chemical” (regulation 15(c)) or “reasonably believe” (regulation 7(2)). The term “painted” in regulation 15(a) may also be ambiguous (e.g., clear varnish versus paint). Absent case law, enforcement agencies’ interpretation will prevail in practice.

Several features of these regulations are potential traps for the unwary. First, the definition of “heater” includes domestic solid burning appliances to which AS/NZS 4012 and AS/NZS 4013 apply, regardless of whether new or used. A private person selling a 20-year-old wood heater on a Facebook marketplace is caught. The building exemption (regulation 5(2)) only applies if the heater is installed in and sold with a building, not if a heater is removed and sold separately. Second, compliance is presumed only if a heater of the same make and model has been tested. If a seller sources a heater of a model that has never been tested (common for older or imported models), they cannot sell it unless they arrange testing themselves, which is expensive. The regulations do not provide a grace period or grandfather clause for existing stock after 8 August 2019. Third, the dynamic incorporation of AS/NZS standards means that if Standards Australia revises either standard to a more stringent level, all heaters sold in WA must immediately comply, even if the seller had no notice. There is no transitional provision for standard changes, only the built-in 2019 transition. Fourth, the permit system for green firewood is entirely discretionary with no objective criteria. A permit can be refused without reason (only reasons on request under regulation 12(3) after refusal, but that provision says “if the CEO refuses to issue a permit the CEO must give the applicant written notice of the refusal and the reasons for it” - so reasons must be given, but the discretion is still “as the CEO thinks fit”). There is no right to appeal. A permit can be revoked if the CEO considers it “not appropriate” to remain in force (regulation 13(2)(b)), a vague standard that gives enormous power. Fifth, the moisture measurement method is determined solely by the CEO’s published instructions, not by an independent standard. The CEO can change those instructions at any time with no public consultation, and compliance is mandatory. Sellers must constantly check the department website for updates. Sixth, the prohibition on painted or treated firewood is absolute and includes any chemical treatment. Many common firewood sources (e.g., pallet wood, offcuts from construction) may have been painted or treated without the seller’s knowledge. A seller is strictly liable regardless of due diligence. There is no exemption for small quantities or incidental content. Seventh, the regulations do not expressly state whether the possession of green firewood with intent to sell is an offence; the stockpiling restriction (regulation 11) only requires separate storage and marking, but possession alone without marking may lead to a prosecution under the general prohibition. Eighth, the inspector’s power to issue a testing notice under regulation 7(2) does not require a warrant. The seller must bear the cost of testing, which can be high. If the heater passes, the seller has no recourse for the cost. Ninth, the penalty for failing to notify the CEO of a change in application details (regulation 12(4)) is $5,000, even if the change is minor and inadvertent. Tenth, the infringement notice amounts are lower than court penalties but paying constitutes an admission of liability. Small businesses may feel pressured to pay rather than defend, even if they believe they are compliant. Finally, the regulations apply only to the defined area for green firewood, but the heater and painted firewood rules apply state-wide (the regulations do not specify a geographic limit for Parts 2 or 4; they are state-wide because they are not restricted). A seller in Broome must comply with heater and painted firewood bans, but green firewood rules do not apply there, creating a confusing patchwork.

For solid fuel heaters: a seller must ensure that every heater offered for sale (including second-hand) is of a make and model that has been tested in accordance with AS/NZS 4012 and AS/NZS 4013 and meets the applicable standards (the stricter ones in force after 8 August 2019). The easiest way is to rely on the compliance presumption: if the same model was tested and passed, and the heater is marked with the tester’s details and test year (regulation 5(1)(b)), it can be sold. Sellers should obtain a copy of the test certificate from the manufacturer or supplier. If a model lacks test documentation, the seller cannot rely on presumption and must either arrange testing through a NATA-registered lab or a CEO-authorised person (regulation 8), or refuse to sell that model. For second-hand heaters, the original test documentation is often lost; sellers should check if the model appears on a list of approved models maintained by the department (if any) or contact the manufacturer. If uncertain, do not sell. Markings must be legible and include the name and address of the testing body and the test year. It is also wise to retain records of the test certificate for each model sold. Under regulation 6, sellers should not make any claim of compliance unless they have actual knowledge or reasonable grounds to believe the heater complies. Relying on an unverified warranty from a supplier may not be enough. The inspector may issue a testing notice for any heater offered for sale. Compliance with the notice is mandatory; refusal results in a $5,000 fine. Sellers should budget for the possibility of random testing. For painted or treated firewood: the simplest approach is not to sell any wood that has been painted, coated in plastic, or treated with any chemical. This includes timber from demolition sites, pallets, railway sleepers, and treated pine (e.g., CCA, ACQ, or LOSP treated). Sellers should source firewood from clean, untreated timber only, and inspect supply visually. If there is any doubt, reject the batch. For green firewood (within the defined Perth region): sellers must measure internal moisture content using the CEO’s published instructions. They should obtain a moisture meter and follow the prescribed method, which likely involves splitting the wood and measuring at a specified depth and temperature. Wood with moisture above 20% (wet basis) cannot be sold to end consumers unless the seller holds a permit (regulation 10(a)). To obtain a permit, apply to the CEO in the approved form, providing any required information. There is no guarantee of approval, and the permit may be conditioned in any manner the CEO thinks fit. Once a permit is obtained, conditions must be strictly followed. Wood with moisture above 20% that is kept for future retail sale must be stored separately from dry wood and clearly labelled as not for sale (regulation 11). Even if a permit is held, the stockpiling requirements still apply unless the permit condition says otherwise. Sellers should also monitor the CEO’s website for any changes to the measurement instructions. If the permit is revoked, the seller must immediately cease all green wood sales. It is prudent to maintain a separate inventory of trees cut at different times and to keep drying records to demonstrate compliance. For all firewood sold, the absolute prohibition on painted or treated wood should be documented through supplier declarations or regular testing. Given the strict liability, a due diligence defence is unlikely to succeed, so prevention is the only safe approach. For record-keeping, maintain copies of test certificates for heaters, permit documents, moisture measurement logs, and supplier certifications for firewood. While the regulations do not explicitly require record-keeping, they would be essential if an inspector challenges a sale. Consider legal advice if there is any doubt about whether a particular heater model or firewood batch is compliant. Finally, note that the infringement notice regime allows an alleged offender to pay a reduced penalty without admission, but seeking independent advice before paying is recommended, especially if the allegation is disputed.