New South Wales act

Protection of the Environment Operations Act 1997

In ForceNSW

Jurisdiction

New South Wales

Act Number

156 of 1997

Collection

act

Plain English Summary

9/10 complexity

This Act consolidates NSW environmental regulation into a single framework giving the EPA and designated regulatory authorities powers to licence scheduled activities, issue prevention/prohibition/clean‑up and recall notices, require pollution‑incident response plans, and impose substantial civil and criminal penalties for non‑compliance (see s6; ss94B–94M; ss96–106; ss148–154).

Who pays and decides: regulated businesses and supply‑chain participants bear compliance and recall costs, potential debt recovery and land charges; the EPA and the Minister exercise substantial discretion to direct action, refer local licensing to the EPA, and design tradeable emission and green‑offset schemes (s3; s318; ss295–295I).

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What it does

The Protection of the Environment Operations Act 1997 (NSW) (POEO Act) is the main environment protection regulatory statute in New South Wales. It establishes a licensing regime for high-impact industrial and commercial activities, creates a tiered system of pollution offences and regulatory enforcement powers, provides for environment protection policies, enables tradeable emission schemes, and gives the EPA and other regulatory authorities wide powers to investigate and respond to pollution events.

The Act's objects (section 3) include protecting, restoring and enhancing the quality of the NSW environment, providing for public involvement in environment protection, ensuring community access to information about pollution, and reducing risks to human health through pollution prevention. The objects specifically direct the Act toward ecologically sustainable development principles.

Main concepts

Scheduled activity: An activity listed in Schedule 1 that requires an environment protection licence. Schedule 1 lists industrial activities such as power generation, petroleum refining, chemical manufacturing, waste disposal, mining operations, and sewage treatment. Whether an activity requires a licence from the EPA or from the local council depends on its scale and type.

Appropriate regulatory authority (section 6): The EPA is the appropriate regulatory authority for most scheduled activities. Local councils are the appropriate regulatory authority for a subset of less significant scheduled activities. The appropriate regulatory authority issues licences, imposes conditions, and exercises most enforcement powers.

Current sections

Direct links to the current provisions in Protection of the Environment Operations Act 1997.

547

Name of Act

1 Name of Act

This Act is the Protection of the Environment Operations Act 1997.

Commencement

2 Commencement

This Act commences on a day or days to be appointed by proclamation.

Objects of Act

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.

s 3: Am 2001 No 58, Sch 2 [1] [2]; 2005 No 96, Sch 1 [1]; 2024 No 10, Sch 1[1].

Definitions

4 Definitions

Expressions used in this Act have the meanings set out in the Dictionary at the end of this Act.

Scheduled activities

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.

Appropriate regulatory authority

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).

s 6: Am 2000 No 20, Sch 1 [1] [2]; 2005 No 96, Sch 1 [2]; 2015 No 5, Sch 8.21 [1]; 2023 No 7, Sch 1.19[1].

General relationship with other Acts

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.

s 7: Am 2012 No 5, Sch 1.5 [1].

Obligations may not be delegated or transferred

7A Obligations may not be delegated or transferred

An obligation imposed under environment protection legislation, including under an environment protection licence, may not be delegated or transferred unless otherwise expressly provided for in the Act under which the obligation is imposed.

s 7A: Ins 2025 No 58, Sch 9[1].

Notes

8 Notes

Notes in the text of this Act do not form part of this Act.

Part 2

Introduction

Part 2 Introduction

Part 2.1 Introduction

Definitions

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.

Purpose of PEPs

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.

Contents of PEPs

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.

Preparation of draft PEP

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.

General considerations in preparing draft PEP

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.

Application of Part

14 Application of Part

This Part applies to the preparation of a draft policy, except where Part 2.4 applies.

15

15 (Repealed)

EPA to prepare draft PEP and impact statement

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.

Public consultation

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.

s 17: Am 2018 No 25, Sch 2.27 [2]. Subst 2024 No 20, Sch 9[2].

Other consultation during preparation of draft PEP

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.

EPA to consider impact statement and submissions

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.

Submission of draft PEP to Minister

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.

Application of Part

21 Application of Part

This Part applies to the preparation of a draft policy where the Minister so directs in accordance with this Part.

Directions

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.

Effect of direction

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.

Submission of draft PEP to Minister

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.

Recommendation for making PEP

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.

Making of PEP

26 Making of PEP

The Governor may make a policy in accordance with a recommendation under this Part.

Interim PEPs

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.

Implementing PEPs—action under this Act and other environment protection legislation

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.

Implementing PEPs—action under Environmental Planning and Assessment Act 1979

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.

s 29: Am 2022 No 3, Sch 5[1] [2]; 2024 No 20, Sch 9[3].

Implementing PEPs

30 Implementing PEPs

(1) A policy must be taken into consideration by a person in carrying out an activity, if the person is required to do so by that or another policy.

(2) Such a requirement can be made as regards—

(a) a specified person, or a specified class of persons, or persons generally, and

(b) a specified activity, or a specified class of activities, or activities generally.

(3) This section does not limit the other provisions of this Part.

s 30: Am 2025 No 58, Sch 9[2]–[7].

Discretions and functions of public authorities

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.

Definition of “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.

Amendment or repeal of PEPs

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.

Publication and commencement of PEPs

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.

Machinery matters for which PEPs may make provision

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.

PEPs not to create offences

36 PEPs not to create offences

A policy may not create an offence for a contravention of the policy.

Judicial notice and validity of PEPs

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.

Failure to comply with procedural requirements

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.

Copies of PEPs to be available to public

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.

Abandonment of draft PEP

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.

Subordinate Legislation Act 1989 does not apply to PEPs

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.

Part 3

Introduction

Part 3 Introduction

Part 3.1 Introduction

Environment protection licences

42 Environment protection licences

Environment protection licences may be issued and otherwise dealt with in accordance with this Chapter.

Types of licences

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.

Integration of licensing

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.

Matters to be taken into consideration in licensing functions

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.

s 45: Am 1998 No 120, Sch 1.35 [1]; 2001 No 58, Sch 2 [3]; 2005 No 96, Sch 1 [3]–[5]; 2018 No 25, Sch 1.19 [1] [2]; 2024 No 20, Sch 9[4].

Operation of 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.

Licensing requirement—scheduled development work

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.

s 47: Am 2005 No 96, Sch 1 [6]; 2012 No 97, Sch 1.34 [1]; 2024 No 20, Sch 9[5]–[8].

Licensing requirement—scheduled activities (premises-based)

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.

s 48: Am 2005 No 96, Sch 1 [7]; 2012 No 97, Sch 1.34 [2]; 2024 No 20, Sch 9[5]–[8].

Licensing requirement—scheduled activities (not premises-based)

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.

s 49: Am 2005 No 96, Sch 1 [8]; 2012 No 97, Sch 1.34 [3]; 2024 No 20, Sch 9[5]–[8].

Timing of licensing of development requiring consent under EP&A Act

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.

s 50: Am 2005 No 96, Sch 1 [9] [10]; 2011 No 22, Sch 2.22 [1] [2]; 2022 No 3, Sch 5[3] [4].

Integrated development

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.

s 51: Am 1998 No 54, Sch 1.14 [1]; 2022 No 3, Sch 5[5] [6].

Commencement of licensing requirements

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.

Application for issue of licence

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.

s 53: Am 2022 No 3, Sch 5[7].

Application for transfer of licence

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.

s 54: Am 2022 No 3, Sch 5[8].

Grant or refusal of application

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.

s 55: Am 2022 No 3, Sch 5[9]–[11].

Premises to which licence applies

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.

Licence fees

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”.

s 57: Am 1999 No 31, Sch 1.37 [1]; 2005 No 96, Sch 1 [11].

Variation of licences

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.

s 58: Am 2022 No 3, Sch 5[12] [13]; 2024 No 20, Sch 9[9].

Restrictions on making applications

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.

Requirement for further information

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.

s 60: Am 2002 No 14, Sch 2 [1]; 2005 No 96, Sch 1 [12].

Reasons to be given for grant or refusal of certain licence applications

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.

s 61: Am 2002 No 14, Sch 2 [2].

Copyright

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.

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.

Failure to comply with 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.

s 64: Am 2005 No 96, Sch 1 [13]; 2012 No 97, Sch 1.34 [4]; 2022 No 3, Sch 5[14]; 2024 No 20, Sch 9[5]–[8].

Part not exclusive

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.

Conditions requiring monitoring, certification or provision of information, and related offences

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.

s 66: Am 2002 No 14, Sch 2 [3]; 2005 No 96, Sch 1 [14]–[18]; 2011 No 63, Sch 2 [1]; 2012 No 97, Sch 1.34 [5]; 2022 No 3, Sch 5[15]–[17]; 2024 No 20, Sch 9[5] [7] [10].

Conditions for mandatory environmental audits

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.

Conditions requiring pollution studies and reduction programs

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.

Conditions relating to schemes for economic measures and environmental monitoring programs

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).

s 69: Am 2000 No 91, Sch 1 [1]. Subst 2005 No 96, Sch 1 [19]. Am 2010 (85), Sch 1 [1] [2].

69A

Chapter extends to licence conditions relating to chemicals

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.

s 69A: Am 2024 No 10, Sch 1[2].

Conditions for financial assurances

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.

s 70: Subst 2005 No 96, Sch 1 [20].

Conditions for remediation work on premises

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.

Conditions for insurance cover

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.

Conditions to take effect later

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).

Conditions for positive covenants

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.

Conditions relating to waste

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.

s 75: Am 2001 No 58, Sch 2 [4]; 2005 No 96, Sch 1 [21]–[23].

Post-closure requirements for waste facilities or other licensed premises

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.

s 76: Subst 2005 No 96, Sch 1 [24].

Duration of licence

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.

Review of licences

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) to comply with the requirements of this section to review a licence is to be reported to the EPA by that authority.

(4A) The EPA must audit, on an industry wide or regional basis, compliance with licence requirements under this Act and whether such requirements reflect best practice in relation to the matters regulated by the licences.

(5) Any failure to comply with the requirements of this section cannot be the subject of proceedings under this Act.

s 78: Am 2005 No 96, Sch 1 [25] [26]; 2017 No 21, Sch 3 [3].

Suspension or revocation of licence by appropriate regulatory authority

79 Suspension or revocation of licence by appropriate regulatory authority

(1) The appropriate regulatory authority may suspend or revoke a licence during its currency.

(2) A suspension or revocation of a licence is effected by notice in writing given to the holder of the licence.

(3) A suspension may be for a specified period, or until the fulfilment of specified conditions, or until further order of the appropriate regulatory authority.

(3A) A licence may be revoked during the currency of a suspension.

(4) The appropriate regulatory authority is not required to give the holder of a licence notice of the authority’s intention to suspend or revoke the licence (whether with or without conditions imposed under section 81) before giving a notice under subsection (2).

(5) The reasons for suspending or revoking a licence may include (but are not limited to) the following—

(a) the holder of the licence has obtained the licence improperly,

(a1) the holder of the licence has contravened this Act or regulations made under this Act,

(b) a condition of the licence has been contravened,

(c) the scheduled development work to which the licence relates has not been commenced or completed and the appropriate regulatory authority is of the opinion that it is no longer appropriate that the work be carried out or completed,

(d) the activities covered by the licence are completed or no longer being carried on,

(e) the holder has failed to pay the annual licence fee by the due date for its payment,

(e1) the holder is liable to pay a contribution in respect of waste under section 88 and has failed to pay the contribution by the due date for its payment,

(f) in the opinion of the appropriate regulatory authority, the holder of the licence is no longer 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.

(6) No fees are refundable on the suspension or revocation of a licence.

s 79: Am 1999 No 31, Sch 1.37 [2]; 2001 No 56, Sch 1.14 [1]; 2005 No 96, Sch 1 [27] [28]; 2014 No 65, Sch 2.1 [1]; 2018 No 25, Sch 1.19 [1] [2]; 2024 No 20, Sch 9[11].

Surrender of licence

80 Surrender of licence

(1) A licence may, on the written application of the holder of the licence, be surrendered with the written approval of the appropriate regulatory authority.

(1A) If an application for approval of the surrender of a licence 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.

(1B) Without limiting the grounds for refusal, an appropriate regulatory authority may refuse an application for surrender of a licence relating to a scheduled activity if it is of the opinion that—

(a) there will be an ongoing environmental impact arising from the activity after the activity ceases to be carried on, and

(b) it is appropriate to manage that impact through conditions of the licence.

(2) If 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.

(2A) 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) (Repealed)

s 80: Am 1999 No 31, Sch 1.37 [3] [4]; 2002 No 14, Sch 2 [4]; 2004 No 55, Sch 1.20 [1]; 2005 No 96, Sch 1 [29].

Conditions of suspension, revocation or surrender

81 Conditions of suspension, revocation or surrender

(1) A licence may be suspended or revoked, or the surrender of a licence may be approved, unconditionally or subject to such conditions as the appropriate regulatory authority imposes.

(2) Those conditions may include (but are not limited to) any conditions to which the licence was subject immediately before it was suspended, revoked or surrendered.

(3) The appropriate regulatory authority may, by notice in writing given to the former holder of the licence, attach new conditions to, or vary or revoke any existing conditions of, the suspension, revocation or surrender of the licence.

Note.

Section 64 makes it an offence to breach conditions under this section.

81A

Variation of conditions of suspension, revocation or surrender to require other persons to carry out works, programs or activities

81A Variation of conditions of suspension, revocation or surrender to require other persons to carry out works, programs or activities

(1) This section applies if a condition of the suspension, revocation or surrender of a licence requires the holder, or former holder, of the licence to do any of the following—

(a) carry out work or programs, including remediation work or pollution reduction programs,

(b) provide a financial assurance under Part 9.4,

(c) otherwise do an activity or thing.

(2) A person other than the holder, or former holder, of the licence may apply to the appropriate regulatory authority to vary the condition to require the person, instead of or in addition to the holder, or former holder, of the licence to do any of the following—

(a) carry out the work or programs,

(b) provide the financial assurance,

(c) do the activity or thing.

(3) The application must be made with the written consent of the holder, or former holder, of the licence unless it is not reasonably practicable to obtain the consent of the holder, or former holder, of the licence.

(4) The application must—

(a) be made in the form approved by the appropriate regulatory authority, and

(b) include or be accompanied by the information indicated in the form, or in material accompanying the form, as being required by the appropriate regulatory authority, and

(c) be accompanied by the fee prescribed by the regulations.

s 81A: Ins 2022 No 3, Sch 5[18].

Minister may suspend or revoke licence if holder convicted of major pollution offence

82 Minister may suspend or revoke licence if holder convicted of major pollution offence

(1) If the holder of a licence is convicted of a major pollution offence, the Minister may, by notice in writing given to the holder—

(a) revoke the licence, or

(b) suspend the licence for such period as the Minister thinks fit.

(2) In this section—

major pollution offence means an offence the commission of which has caused or is likely to cause harm to the environment, being an offence punishable by a fine of $1,000,000 or more (in the case of a corporation) or $250,000 or more (in the case of an individual).

s 82: Am 2005 No 96, Sch 1 [30].

Fit and proper persons

83 Fit and proper persons

(1) This section has effect in determining whether a person is a fit and proper person for section 45(f), 79(5)(f) or 253B(1)(a) but does not limit the section.

(2) The appropriate regulatory authority may take into consideration any or all of the following—

(a) whether the person has—

(i) contravened environment protection legislation or other relevant legislation, or

(ii) held a licence or other authority that has been suspended or revoked under environment protection legislation or other relevant legislation,

(b) if the person is a corporation—whether a director or former director of the corporation or a related body corporate has—

(i) contravened environment protection legislation or other relevant legislation, or

(ii) held a licence or other authority that has been suspended or revoked under environment protection legislation or other relevant legislation,

(c) if the person is a corporation—whether a director or former director of the corporation or a related body corporate is or has been the director of another corporation that has—

(i) contravened environment protection legislation or other relevant legislation, or

(ii) held a licence or other authority that has been suspended or revoked under environment protection legislation or other relevant legislation,

(d) the person’s record of compliance with environment protection legislation,

(e) if the person is a corporation—the record of compliance with environment protection legislation of each director or former director of the corporation or a related body corporate,

(f) whether, in the appropriate regulatory authority’s opinion, the management of the activities or works that are or are to be authorised, required or regulated under the relevant licence will or will not be in the hands of a technically competent person,

(g) whether, in the appropriate regulatory authority’s opinion, the person is of good repute, having regard to character, honesty and integrity,

(h) if the person is a corporation—whether each director and former director of the corporation or a related body corporate is, in the appropriate regulatory authority’s opinion, of good repute, having regard to character, honesty and integrity,

(i) whether the person, in the previous 10 years, has been convicted in New South Wales or elsewhere of an offence involving fraud or dishonesty,

(j) if the person is a corporation—whether a director or former director of the corporation or a related body corporate, in the previous 10 years, has been convicted in New South Wales or elsewhere of an offence involving fraud or dishonesty,

(k) whether the person, during the previous 3 years, was personally insolvent,

(l) if the person is a corporation—whether a director or former director of the corporation or a related body corporate, during the previous 3 years and while a director of the corporation or related body corporate, was personally insolvent,

(m) if the person is a corporation—whether the person or a related body corporate applied to take the benefit of a law for the relief of insolvent debtors or compounded with the person’s or body corporate’s creditors,

(n) if the person is an individual—whether the person is or was a director of a corporation that—

(i) is the subject of a winding up order, or

(ii) has had a controller or administrator appointed during the previous 3 years,

(o) if the person is a corporation—whether the corporation—

(i) is the subject of a winding up order, or

(ii) has had a controller or administrator appointed during the previous 3 years,

(p) whether the person has demonstrated to the EPA the financial capacity to comply with the person’s obligations under or in connection with the licence or proposed licence,

(q) whether the person is in partnership, in connection with activities that are subject to a licence or licence application, with a person whom the appropriate regulatory authority does not consider to be a fit and proper person under this section,

(r) if the person is a corporation—whether a related body corporate is in partnership with a person whom the appropriate regulatory authority does not consider to be a fit and proper person under this section,

(s) another ground prescribed by the regulations.

(3) A reference in subsection (2) to a director of a body corporate extends to a person involved in the management of the affairs of the body corporate.

(4) Without limiting the generality of the above, the appropriate regulatory authority may disregard contraventions referred to in subsection (2) having regard to the seriousness of the contraventions, the length of time since they occurred, and other matters that appear relevant to the appropriate regulatory authority.

(5) For the purposes of this section, other relevant legislation is any legislation declared by the regulations to be other relevant legislation for the purposes of this section. The regulations may so declare legislation that has been repealed or legislation of a place outside the State.

s 83: Am 2001 No 56, Sch 1.14 [2]–[4]; 2005 No 96, Sch 1 [31]; 2018 No 25, Sch 1.19 [3]; 2022 No 3, Sch 5[19]–[24]; 2024 No 20, Sch 9[12].

Date from which decision operates

84 Date from which decision operates

(1) A decision of the appropriate regulatory authority regarding a licence operates from the date of the decision or another date specified by the appropriate regulatory authority, except as provided by this section.

(2) If an appeal is made against a decision of the appropriate regulatory authority to vary, suspend or revoke a licence, to approve or refuse the surrender of a licence subject to conditions, or to attach any new conditions to, or vary any conditions of, a suspension, revocation or surrender of a licence and the Land and Environment Court directs that the decision is stayed, the decision does not operate until the stay ceases to have effect or the Land and Environment Court confirms the decision or the appeal is withdrawn, whichever first occurs.

(3) A decision of the appropriate regulatory authority to approve the surrender of a licence without any condition operates from the time the authority notifies the licensee in writing of the decision.

(4) (Repealed)

s 84: Am 1999 No 31, Sch 1.37 [5]; 2001 No 56, Sch 1.14 [5] [6]; 2005 No 96, Sch 1 [32] [33].

Death of licensee

85 Death of licensee

(1) If the holder of a licence dies, the legal personal representative of the holder or a person approved by the appropriate regulatory authority is taken to be the holder of the licence as if it had been transferred to the representative or person.

(2) Subsection (1) does not prevent the suspension, revocation or surrender of the licence in accordance with this Act.

Notice for breach of licensing requirements

86 Notice for breach of licensing requirements

(1) If the occupier of any premises carries out work at the premises in contravention of Part 3.2, the appropriate regulatory authority may, by notice in writing given to the occupier, require the occupier—

(a) to remove the work that has been carried out, or

(b) to restore the premises to their previous state,

within such time as may be specified in the notice.

(2) A notice under this section operates from the day the notice is given or from such later day as the notice specifies.

(2A) If an appeal is made against a notice under this section and the Land and Environment Court directs that the notice is stayed, the notice does not operate until the stay ceases to have effect or the Land and Environment Court confirms the notice or the appeal is withdrawn, whichever first occurs.

(3) A person who contravenes the requirements of a notice under this section 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 (3) 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.

s 86: Am 2005 No 96, Sch 1 [34] [35]; 2012 No 97, Sch 1.34 [6]; 2024 No 20, Sch 9[5]–[8].

87

87 (Repealed)

Contributions by licensee of waste facility

88 Contributions by licensee of waste facility

(1) This section applies to waste facilities that are required to be licensed under this Chapter.

(2) The occupier of a waste facility to which this section applies is required to pay to the EPA in respect of all waste received at the facility such contribution as is prescribed by the regulations.

(3) An occupier who fails to pay the whole or any part of the contribution payable by the occupier under this section—

(a) in the manner (if any) prescribed by the regulations or as otherwise directed by the EPA by notice in writing given to the occupier, or

(b) within the time or at such intervals as prescribed by the regulations, or within the time or at such intervals as may be otherwise directed by the EPA by notice in writing given to the occupier,

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.

(4) (Repealed)

(5) The regulations may—

(a) provide for contributions to be calculated on such basis (including such estimates), and in accordance with such factors, as may be specified or described in the regulations, and

(b) provide for the exemption of specified occupiers, or specified classes of occupiers, from the requirement to pay contributions, and

(c) provide for the exemption of specified wastes from the calculation of contributions (including for example wastes that are recycled, re-used, recovered or processed), and

(d) provide for the payment of rebates to specified occupiers or specified classes of occupiers, and

(e) provide for the waiver of interest payable on unpaid contributions or unpaid portions of contributions, including the waiver by the EPA, at the EPA’s discretion, of amounts of interest of not more than the prescribed amount.

(6) Any contribution payable under this section becomes, if it is not paid in accordance with this section and the regulations, a debt due to the EPA that is recoverable in any court of competent jurisdiction.

(7) Interest is payable on any unpaid contribution or any unpaid portion of the contribution under this section at such rate and calculated in such manner as may be prescribed by the regulations. Any such interest may be recovered in the same way as the contribution may be recovered.

(8) In this section, liquid waste has the same meaning as it has in Schedule 1.

s 88: Am 2005 No 96, Sch 1 [37]–[41]; 2007 No 26, Sch 1 [1]–[3]; 2008 No 62, Sch 1.27 [1]; 2013 No 60, Sch 1 [1]; 2024 No 20, Sch 9[5]–[8]; 2025 No 58, Sch 9[14].

Part 4

Preliminary

Part 4 Preliminary

Part 4.1 Preliminary

Definitions

89 Definitions

In this Chapter—

clean-up notice means a notice under Part 4.2.

compliance cost notice means a notice under Part 4.5.

prevention notice means a notice under Part 4.3.

prohibition notice means a notice under Part 4.4.

Classification of environment protection notices

90 Classification of environment protection notices

Environment protection notices are of the following kinds—

(a) clean-up notices,

(b) prevention notices,

(c) prohibition notices.

Note.

See also noise control notices under Part 8.6.

90A

Definitions

90A Definitions

In this part—

preliminary investigation compliance notice—see section 90G(1).

preliminary investigation notice—see section 90B(2).

relevant circumstances—see section 90B(1).

s 90A: Ins 2024 No 20, Sch 9[14].

90B

Issue of preliminary investigation notices

90B Issue of preliminary investigation notices

(1) This section applies if the EPA reasonably suspects any of the following circumstances (relevant circumstances) may exist or have existed at premises—

(a) circumstances that may pose a potential risk of harm to human health or the environment from—

(i) a substance, or

(ii) the deposit of waste or substances suspected of being waste,

(b) a pollution incident.

(2) The EPA may issue a person referred to in subsection (3) with a written notice (a preliminary investigation notice) to facilitate the EPA carrying out a preliminary investigation to determine whether the relevant circumstances exist.

(3) A preliminary investigation notice may be issued to—

(a) an owner or occupier of the premises, or

(b) a person who has caused or contributed to, to any extent, the relevant circumstances which are the subject of the notice.

(4) A person to whom a preliminary investigation notice is issued must comply with the notice.

Maximum penalty for subsection (4)—

(a) for a corporation—$2,000,000 and, for a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b) for an individual—$500,000 and, for a continuing offence, a further penalty of $120,000 for each day the offence continues.

s 90B: Ins 2024 No 20, Sch 9[14].

90C

Preliminary investigation notice may be given orally

90C Preliminary investigation notice may be given orally

(1) The EPA may give a preliminary investigation notice orally.

(2) A preliminary investigation notice given orally to a person ceases to have effect 72 hours after it was given to the person unless the notice is confirmed by the EPA by a written preliminary investigation notice.

(3) A notice given orally under subsection (1)—

(a) has the same effect as a written preliminary investigation notice, and

(b) is taken to be a preliminary investigation notice.

s 90C: Ins 2024 No 20, Sch 9[14].

90D

Content of preliminary investigation notices

90D Content of preliminary investigation notices

(1) A preliminary investigation notice may require the person to whom it is issued to assist the EPA to—

(a) investigate whether the relevant circumstances exist, and

(b) if the relevant circumstances exist—determine the nature and extent of the relevant circumstances, including the nature and extent of any harm or risk of harm to human health or the environment arising from the relevant circumstances.

(2) Without limiting subsection (1), the preliminary investigation notice may require the person to whom it is issued to do the following—

(a) collect samples of a substance and have the samples tested and analysed,

(b) provide a report about the testing or analysis to the EPA,

(c) preserve or prevent the disturbance of a specified substance or location at the premises for a period of time specified in the preliminary investigation notice, including—

(i) moving a substance to a more secure location on the premises or on other premises, and

(ii) restricting access to a substance or location, and

(iii) preventing a substance from being removed from the premises.

s 90D: Ins 2024 No 20, Sch 9[14].

90E

Preliminary investigation notices may be given to directors and related bodies corporate

90E Preliminary investigation notices may be given to directors and related bodies corporate

(1) This section applies if —

(a) a preliminary investigation notice (the previous preliminary investigation notice) has been given to a corporation by the EPA, and

(b) the corporation has not complied with the previous preliminary investigation notice within the period specified in the notice.

(2) The EPA may, by written notice (the supplementary preliminary investigation notice), direct 1 or more of the following to carry out, or ensure the carrying out of, the action specified in the preliminary investigation notice within the period specified in the notice—

(a) a current director of the corporation,

(b) a former director of the corporation,

(c) a related body corporate.

(3) The supplementary preliminary investigation notice may also require the person to whom the notice is given to provide reports to the EPA about progress on the carrying out of the action specified in the notice.

(4) If the person given a supplementary preliminary investigation notice complies with the notice but was not the person who caused, or solely caused, the relevant circumstances, the cost, or part of the cost, of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from another person who caused or contributed to the relevant circumstances.

(5) A reference in subsection (2) to a director of a corporation extends to a person involved in the management of the affairs of the corporation.

s 90E: Ins 2024 No 20, Sch 9[14].

90F

Action by EPA to comply with preliminary investigation notice

90F Action by EPA to comply with preliminary investigation notice

If a person does not comply with a preliminary investigation notice given to the person or the EPA otherwise believes it would be appropriate, the EPA may—

(a) take action to comply with the notice itself or by its employees, agents or contractors, and

(b) recover the relevant costs under sections 90G and 90H.

s 90F: Ins 2024 No 20, Sch 9[14].

90G

Preliminary investigation compliance notices

90G Preliminary investigation compliance notices

(1) If the EPA gives a preliminary investigation notice to a person, the EPA may, by written notice (a preliminary investigation compliance notice) given to the person, require the person to pay all or any reasonable costs and expenses incurred by the EPA in connection with—

(a) taking action or monitoring under the preliminary investigation notice, and

(b) ensuring the notice is complied with, and

(c) other associated matters.

(2) If the EPA takes action under section 90F because a preliminary investigation notice is not complied with or the EPA otherwise believes it would be appropriate, the EPA may, by written notice, require the person to whom the notice was given or a person who caused or contributed to the relevant circumstances to pay all or any reasonable costs and expenses incurred by the EPA in taking the action.

s 90G: Ins 2024 No 20, Sch 9[14].

90H

Recovery of amounts

90H Recovery of amounts

(1) The EPA may recover any unpaid amounts specified in a preliminary investigation compliance notice as a debt in a court of competent jurisdiction.

(2) If the person given a preliminary investigation compliance notice complies with the notice but was not the person who caused or contributed to the relevant circumstances, the cost of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from the person who caused or contributed to the relevant circumstances.

s 90H: Ins 2024 No 20, Sch 9[14].

90I

Recovery of other costs

90I Recovery of other costs

(1) This section applies if—

(a) a person (the first person) carries out the requirements of a preliminary investigation notice, and

(b) another person (the second person) is issued an environment protection notice or recall notice in relation to the relevant circumstances the subject of the preliminary investigation notice.

(2) The first person may recover the first person’s costs in carrying out the requirements from the second person if the second person contributed to the relevant circumstances.

(3) For this section, the costs of the first person in carrying out the requirements of the preliminary investigation notice include any amount for which the first person is liable, or reasonable cost the first person has a duty to meet, under section 90G.

s 90I: Ins 2024 No 20, Sch 9[14].

Clean-up by owners and occupiers of premises and polluters

91 Clean-up by owners and occupiers of premises and polluters

(1) Notices The appropriate regulatory authority may, by notice in writing, do 1 or more of the following—

(a) direct an owner or occupier of premises at or from which the authority reasonably suspects that a pollution incident has occurred or is occurring,

(b) direct a person who is reasonably suspected by the authority of causing or having caused a pollution incident,

(c) direct a person who is reasonably suspected by the authority of contributing, to any extent, to a pollution incident,

to take such clean-up action as is specified in the notice and within such period as is specified in the notice.

Note.

pollution incident and clean-up action are defined in the Dictionary.

(1A) The appropriate regulatory authority may give a clean-up notice to a person under subsection (1)(c)—

(a) whether or not another person has been given a clean-up notice in relation to the pollution incident, and

(b) whether or not another person contributed to the pollution incident.

(1B) Without limiting subsection (1), a clean-up notice given to a person under subsection (1)(c) may require the person to carry out clean-up actions to completely prevent, minimise, remove, disperse, destroy or mitigate pollution resulting or likely to result from the incident irrespective of the nature or extent of the person’s contribution to the incident.

(2) Notices by EPA in emergency The EPA may, if it considers that it is necessary to do so because of an emergency, give the clean-up notice even if it is not the appropriate regulatory authority with respect to the pollution incident.

(3) Reports The clean-up notice may require the person to whom the notice is given to furnish reports to the appropriate regulatory authority regarding progress on the carrying out of the clean-up action.

(4) If the person given a clean-up notice complies with the notice but was not the person who caused, or solely caused, the pollution incident, the cost, or part of the cost, of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from any person who caused or contributed to the pollution incident.

(5) (Repealed)

Note—

See also section 144AG, which provides that this part applies to the depositing of litter or waste referred to in section 144AE(1) or the depositing of litter under Part 5.6A as if the depositing of the litter or waste were a pollution incident.

s 91: Am 2005 No 96, Sch 1 [42]; 2012 No 97, Sch 1.34 [7]; 2014 No 65, Sch 2.1 [2]; 2022 No 3, Sch 5[25]–[30]; 2024 No 20, Sch 9[15] [16].

91A

Clean-up notices may be given to directors and related bodies corporate

91A Clean-up notices may be given to directors and related bodies corporate

(1) This section applies if —

(a) a clean-up notice (the previous clean-up notice) has been given to a corporation—

(i) by the appropriate regulatory authority under section 91(1), or

(ii) by the EPA under section 91(2), and

(b) the corporation has not complied with the previous clean-up notice within the period specified in the notice.

(2) The appropriate regulatory authority may, by written notice (the supplementary clean-up notice), direct 1 or more of the following to carry out, or ensure the carrying out of, the clean-up action specified in the notice within the period specified in the notice—

(a) a current director of the corporation,

(b) a former director of the corporation,

(c) a related body corporate.

(3) The supplementary clean-up notice may require the person to whom the notice is given to provide reports to the appropriate regulatory authority about progress on the carrying out of the clean-up action.

(4) If the EPA considers it necessary for the purposes of responding to an emergency, the EPA may give a supplementary clean-up notice under this section regardless of whether the EPA is the appropriate regulatory authority in relation to the pollution incident.

(5) If the person given a supplementary clean-up notice complies with the notice but was not the person who caused, or solely caused, the pollution incident, the cost, or part of the cost, of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from another person who caused or contributed to the pollution incident.

(6) A reference in subsection (2) to a director of a corporation extends to a person involved in the management of the affairs of the corporation.

s 91A: Ins 2022 No 3, Sch 5[31]. Am 2023 No 30, Sch 2.5[1].

91AA

Ancillary directions

91AA Ancillary directions

(1) This section applies if the appropriate regulatory authority—

(a) has given a clean-up notice to a person, and

(b) reasonably believes access to premises or a substance on premises needs to be restricted—

(i) to allow clean-up action to be taken under the clean-up notice, or

(ii) because there is a risk to human health from the substance the subject of the pollution incident for which clean-up action must be taken.

(2) The appropriate regulatory authority may give a direction (an ancillary direction)—

(a) prohibiting, regulating or controlling entry or exit to the premises, or

(b) providing for matters to secure, or restrict or prevent access to, the substance, or

(c) prohibiting, regulating or controlling an activity in connection with the substance.

(3) The appropriate regulatory authority may give an ancillary direction by—

(a) publishing notice of the direction on a NSW Government website, or

(b) for an emergency—displaying a copy of the direction in a prominent place in or adjacent to the premises to which the direction applies.

(4) An ancillary direction takes effect when notice of the direction is published or a copy of the direction is displayed under subsection (3).

(5) If an ancillary direction is given under subsection (3)(b), notice of the ancillary direction must be published on a NSW Government website as soon as practicable after the ancillary direction is given.

s 91AA: Ins 2025 No 58, Sch 9[31].

91B

Offence

91B Offence

A person who, without reasonable excuse, does not comply with a clean-up notice given to the person is guilty of an offence.

Maximum penalty—

(a) for a corporation—$2,000,000 and, for a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b) for an individual—$500,000 and, for a continuing offence, a further penalty of $120,000 for each day the offence continues.

Note—

An offence against this section 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.

s 91B: Ins 2022 No 3, Sch 5[31]. Am 2024 No 20, Sch 9[5]–[8].

Clean-up by public authorities

92 Clean-up by public authorities

(1) Directions to public authorities to take clean-up action If the EPA reasonably suspects that a pollution incident has occurred or is occurring, the EPA may, by notice in writing, direct a public authority to take such clean-up action as is specified in the notice. The public authority is authorised and required to take that action.

(2) Voluntary clean-up action by public authorities If a public authority reasonably suspects that a pollution incident has occurred or is occurring, the public authority may take such clean-up action as it considers necessary. The public authority is authorised to take that action, whether or not it is directed to take clean-up action under subsection (1).

(3) Operation of section Notices may be given, and action may be taken, under this section—

(a) whether or not the EPA is the appropriate regulatory authority with respect to the pollution incident, and

(b) whether or not a clean-up notice has been given under section 91, and (if such a notice has been given) whether or not the period specified in the notice under that section has ended.

(4) Taking of clean-up action A public authority may take clean-up action under this section by itself or by its employees, agents or contractors.

(5) Definition In this section—

public authority does not include a State owned corporation or the lessor of a transacted distribution system or transacted transmission system under the Electricity Network Assets (Authorised Transactions) Act 2015.

s 92: Am 2015 No 5, Sch 8.21 [2].

Clean-up directions may be given orally

93 Clean-up directions may be given orally

(1) Oral directions A regulatory authority may, instead of giving a direction under this Part by notice in writing, give the direction orally.

(2) Manner of giving oral direction A direction that can be given orally under this Part by a regulatory authority can be given orally by a person who is acting under delegated or other authority from the authority.

(3) Reduction to writing A direction given orally to a person ceases to have effect on the expiration of 3 business days from the time it was given unless confirmed by the regulatory authority who gave the direction orally by a written clean-up notice given to the person.

(4) Effect of oral direction A direction given orally has the same effect as a direction given by notice in writing, and is taken to be a clean-up notice.

s 93: Am 2001 No 56, Sch 1.14 [7]; 2025 No 58, Sch 9[32].

93A

Development consent and approval not required for clean-up action

93A Development consent and approval not required for clean-up action

(1) This section applies if—

(a) under this part, a person is required to take clean-up action, and

(b) the carrying out of the clean-up action would, but for this section, require consent or approval under the Environmental Planning and Assessment Act 1979.

(2) Despite the Environmental Planning and Assessment Act 1979 or an instrument made under that Act, consent or approval under that Act or instrument is not required to carry out the clean-up action.

s 93A: Ins 2024 No 20, Sch 9[17].

Fee

94 Fee

(1) The purpose of this section is to enable a regulatory authority to recover the administrative costs of preparing and giving clean-up notices.

(2) A person who is given a clean-up notice by a regulatory authority must within 30 days pay the prescribed fee to the authority.

(3) The regulatory authority may—

(a) extend the time for payment of the fee, on the application of a person to whom subsection (2) applies, or

(b) waive payment of the whole or any part of the fee, on the authority’s own initiative or on the application of a person to whom subsection (2) applies.

(4) A person who does not pay the fee within the time provided under this section is guilty of an offence.

Maximum penalty—200 penalty units.

Note.

Section 110 (5) provides that a fee is not payable for the variation of an environment protection notice under this Chapter.

s 94: Am 2005 No 96, Sch 1 [43] [44].

94A

Definitions

94A Definitions

In this part—

recall cost notice—see section 94M(1).

recall notice—see section 94B.

supply chain participant—see section 94C(1)(c).

s 94A: Ins 2024 No 20, Sch 9[18].

94B

Issue of recall notice

94B Issue of recall notice

The EPA may, with the approval of the Minister, issue a notice (a recall notice) if, in the EPA’s opinion, 1 or more of the following grounds apply—

(a) either—

(i) a substance poses a potential risk of harm to human health or the environment, or

(ii) a particular use of, or activity involving, the substance poses a potential risk of harm to human health or the environment,

(b) a substance—

(i) is required by environment protection legislation or a national environment protection measure to comply with a prescribed standard or other specific requirements, and

(ii) does not comply with the standard or other requirements,

(c) environment protection legislation has been contravened,

(d) another matter prescribed by the regulations.

s 94B: Ins 2024 No 20, Sch 9[18].

94C

Content of recall notice

94C Content of recall notice

(1) A recall notice must—

(a) identify the substance the subject of the notice, and

(b) state the reason under section 94B the recall notice has been issued, and

(c) identify the persons or class of persons (both supply chain participants) who are subject to the recall notice, and

(d) give information or advice about how to minimise the risk of potential harm from the substance, and

(e) state the actions required to be taken by the supply chain participants who are subject to the recall notice, and

(f) include any other matters prescribed by the regulations.

(2) For subsection (1)(c), the recall notice may identify the supply chain participants in either or both of the following ways—

(a) specifically by name,

(b) by reference to a class of persons.

s 94C: Ins 2024 No 20, Sch 9[18].

94D

Application of recall notice to supply chain participants

94D Application of recall notice to supply chain participants

A recall notice may apply to any supply chain participant involved in the supply chain of the substance, including a supply chain participant—

(a) producing, generating, processing or reprocessing the substance, including processing or reprocessing the substance with other substances or by mixing the substance with other substances, or

(b) selling, distributing, transporting, supplying, resupplying or storing the substance, or

(c) receiving or processing the substance, whether or not to supply the substance to another person, or

(d) making the substance available or providing the substance to another person.

s 94D: Ins 2024 No 20, Sch 9[18].

94E

Actions required by recall notice

94E Actions required by recall notice

For section 94C(1)(e), a recall notice may require a supply chain participant who is subject to the notice to do any of the following—

(a) stop supplying the substance, or a particular batch of the substance, immediately or within a specified time,

(b) take action to recover the substance from another person and return the substance to—

(i) the supply chain participant’s premises, or

(ii) another specified location,

(c) take specified action in relation to the substance, including—

(i) sampling, testing, remediating or disposing of the substance, or

(ii) moving the substance to a specified location,

(d) give information and records to the EPA about—

(i) who the supply chain participant has supplied the substance to, and

(ii) the supply chain for the substance,

(e) if the substance cannot be recalled from a person who has received a supply of the substance—take specified actions, including the following—

(i) securing the substance at its current location,

(ii) taking action or giving information to the person to prevent or minimise the likelihood of the substance causing harm to human health or the environment,

(f) publish, in a form approved by the EPA—

(i) warnings that the substance is being recalled on the basis of 1 or more of the grounds referred to in section 94B(a)–(d), and

(ii) other specified particulars, including the following—

(A) batch numbers or other identifying particulars of the substance,

(B) information about preventing or minimising the likelihood of the substance causing harm to human health or the environment,

(C) information about the recall of the substance,

(g) control the movement of the substance at premises used or controlled by the supply chain participant, including the following—

(i) isolating the substance from other substances,

(ii) securing, or restricting or preventing access to, the substance in place,

(iii) prohibiting the movement of the substance on the premises at which the substance is located or to other premises,

(h) not produce the substance for a specified period,

(i) report on compliance with the recall notice,

(j) if the supply chain participant has received supply or resupply of the substance—not supply the substance to another person,

(k) take the following action and provide evidence of the action taken—

(i) action to dispose of the substance at a facility that can lawfully receive the substance,

(ii) action to destroy the substance,

(l) another action prescribed by the regulations.

s 94E: Ins 2024 No 20, Sch 9[18].

94F

Publication of recall notice

94F Publication of recall notice

(1) A recall 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.

(2) A recall notice takes effect—

(a) when the notice is published on the EPA’s website, or

(b) on a later date specified in the notice.

(3) A recall notice must also be published in the Gazette as soon as practicable after the notice is published on the EPA’s website.

s 94F: Ins 2024 No 20, Sch 9[18].

94G

Recall notices may be given to directors and related bodies corporate

94G Recall notices may be given to directors and related bodies corporate

(1) This section applies if —

(a) a recall notice (the previous recall notice) has been issued by the EPA in relation to a supply chain participant that is a corporation, and

(b) the corporation has not complied with the previous recall notice within the period specified in the notice.

(2) The EPA may, by written notice (the supplementary recall notice), direct 1 or more of the following to carry out, or ensure the carrying out of, the action specified in the recall notice within the period specified in the notice—

(a) a current director of the supply chain participant,

(b) a former director of the supply chain participant,

(c) a related body corporate.

(3) The supplementary recall notice may also require the person to whom the notice is given to provide reports to the EPA about progress on the carrying out of the action specified in the notice.

(4) If the person given a supplementary recall notice complies with the notice but was not the person who caused, or solely caused, the circumstances the subject of the recall notice, the cost, or part of the cost, of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from another person who caused or contributed to the relevant circumstances.

(5) A reference in subsection (2) to a director of a supply chain participant that is a corporation extends to a person involved in the management of the corporation.

s 94G: Ins 2024 No 20, Sch 9[18].

94H

Development consent and approval not required for action under recall notice

94H Development consent and approval not required for action under recall notice

(1) This section applies if—

(a) under this part, a person is required to take action under a recall notice, and

(b) the carrying out of the action would, but for this section, require consent or approval under the Environmental Planning and Assessment Act 1979.

(2) Despite the Environmental Planning and Assessment Act 1979 or an instrument made under that Act, consent or approval under that Act or instrument is not required to carry out the action under the recall notice.

s 94H: Ins 2024 No 20, Sch 9[18].

94I

Public authority may take action in relation to recall notice

94I Public authority may take action in relation to recall notice

(1) This section applies if—

(a) a supply chain participant is given a recall notice, and

(b) either—

(i) the supply chain participant does not comply with the notice, or

(ii) the EPA or a public authority otherwise considers it would be appropriate for the EPA or public authority to take action required under the recall notice.

(2) The EPA may take action required under the recall notice if the EPA considers it appropriate to take the action.

(3) The public authority may take action required under the recall notice if the public authority—

(a) is directed by the EPA to take the action, or

(b) otherwise considers it appropriate to take the action.

s 94I: Ins 2024 No 20, Sch 9[18].

94J

Costs of complying with recall notice

94J Costs of complying with recall notice

(1) A supply chain participant to whom a recall notice is given must pay the participant’s own costs of complying with the notice.

(2) To avoid doubt, subsection (1) does not prevent the supply chain participant from recovering costs, or making another claim for damages or compensation, to which the supply chain participant may be entitled other than under this Act.

(3) If the EPA or a public authority takes action to comply with a recall notice itself or its officers, employees or contractors take the action, the EPA or public authority may recover the relevant costs under sections 94M and 94N.

s 94J: Ins 2024 No 20, Sch 9[18].

94K

Reviews and appeals

94K Reviews and appeals

For this part—

(a) a decision by the Minister or EPA is not an administratively reviewable decision for the Administrative Decisions Review Act 1997, and

(b) in proceedings for judicial review or other provisions, a court or tribunal must not make an interlocutory order that has the effect of staying the operation of a recall notice.

s 94K: Ins 2024 No 20, Sch 9[18].

94L

Failure to comply with recall notice

94L Failure to comply with recall notice

A supply chain participant who is subject to a recall notice must, unless the participant has a reasonable excuse, comply with the notice.

Maximum penalty—

(a) for a corporation—$2,000,000 and, for a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b) for an individual—$500,000 and, for a continuing offence, a further penalty of $120,000 for each day the offence continues.

s 94L: Ins 2024 No 20, Sch 9[18].

94M

Recall cost notices

94M Recall cost notices

(1) The EPA or a public authority may, by written notice (a recall cost notice) published on the EPA’s website, require the supply chain participant to whom a recall notice is given to pay all or any reasonable costs and expenses incurred by the EPA or public authority in connection with—

(a) taking action or monitoring under the recall notice, and

(b) ensuring the notice is complied with, and

(c) a matter associated with or incidental to a matter referred to in paragraph (a) or (b).

(1A) Without limiting subsection (1)(c), the costs and expenses incurred by the EPA in connection with a matter associated with or incidental to a matter referred to in subsection (1)(a) or (b) include costs and expenses incurred in connection with the matter before the recall cost notice was given.

(2) If the EPA or a public authority takes action under subsection (1), the EPA or public authority may, by written notice given to the supply chain participant to whom the recall notice was given, require the participant to pay all or any reasonable costs and expenses incurred by the EPA or public authority in taking the action.

s 94M: Ins 2024 No 20, Sch 9[18]. Am 2025 No 58, Sch 9[33]–[35].

94N

Recovery of amounts

94N Recovery of amounts

The EPA or a public authority may recover any unpaid amounts specified in a recall cost notice as a debt in a court of competent jurisdiction.

s 94N: Ins 2024 No 20, Sch 9[18].

94O

Voluntary recalls

94O Voluntary recalls

(1) A person involved in the supply chain of a substance may initiate a voluntary recall of the substance if the person considers it necessary or appropriate, including if—

(a) either—

(i) the substance poses a potential risk of harm to human health or the environment, or

(ii) a particular use of, or activity involving, the substance poses a potential risk of harm to human health or the environment, or

(b) the substance—

(i) is required by environment protection legislation or a national protection measure to comply with a prescribed standard or other specific requirements, and

(ii) does not comply with the standard or other requirements, or

(c) environment protection legislation has been contravened, or

(d) another matter prescribed by a regulation under section 94B(d) applies.

(2) If a person initiates a voluntary recall, the person must immediately give the EPA written notice of the recall.

(3) The notice must include the following information—

(a) that a voluntary recall is occurring,

(b) details of the substance that is subject to the recall,

(c) if the substance may pose a risk to human health or the environment—the circumstances in which the substance may pose the risk and the nature of the risk,

(d) if the substance does not comply with a prescribed standard or other requirements—the nature of the non-compliance,

(e) any information or advice for minimising any risk to human health or the environment posed by the substance,

(f) the nature of the actions being taken by the person as part of the recall,

(g) any other matters prescribed by the regulations.

(4) If the EPA is given notice about a voluntary recall of a substance, the EPA must publish information about the recall on the EPA’s website.

(5) A voluntary recall under this section does not prevent the EPA from issuing a recall notice to the person in relation to the same substance or matter.

s 94O: Ins 2024 No 20, Sch 9[18].

Meaning of environmentally unsatisfactory manner

95 Meaning of environmentally unsatisfactory manner

For the purposes of this Part an activity is carried on in an environmentally unsatisfactory manner if—

(a) it is carried on in contravention of, or in a manner that is likely to lead to a contravention of, this Act, the regulations or a condition attached to an environment protection licence (including a condition of a surrender of a licence) or an exemption given under this Act or the regulations, or

(b) it causes, or is likely to cause, a pollution incident, or

(c) it is not carried on by such practicable means as may be necessary to prevent, control or minimise pollution, the emission of any noise or the generation of waste, or

(d) it is not carried on in accordance with good environmental practice.

s 95: Am 2005 No 96, Sch 1 [45].

Preventive action

96 Preventive action

(1) Application of section This section applies when the appropriate regulatory authority reasonably suspects that an activity has been or is being carried on in an environmentally unsatisfactory manner at any premises or by any person (otherwise than at premises).

(2) Prevention notices The appropriate regulatory authority may, by notice in writing, do either or both of the following—

(a) direct the occupier of the premises,

(b) direct the person carrying on the activity (whether or not at premises),

to take such action, as is specified in the notice and within such period (if any) as is specified in the notice, to ensure that the activity is carried on in future in an environmentally satisfactory manner.

(3) Examples The action to be taken may (without limitation) include any of the following—

(a) installing, repairing, altering, replacing, maintaining or operating control equipment or other plant,

(b) modifying, or carrying out any work on, plant,

(c) ceasing to use plant or altering the way plant is used,

(d) ceasing to carry on or not commencing to carry on an activity,

(e) carrying on an activity in a particular manner,

(f) carrying on an activity only during particular times,

(g) monitoring, sampling or analysing any pollution or otherwise ascertaining the nature and extent of pollution or the risk of pollution,

(h) action with respect to the transportation, collection, reception, re-use, recovery, recycling, processing, storage or disposal of any waste or other substance,

(i) preparing and carrying out a plan of action to control, prevent or minimise pollution or waste,

(j) reviewing the carrying out of an activity,

(k) actions in relation to the recording of food donations within the meaning of Chapter 5A,

(l) other actions that must be taken to comply with this Act, the regulations, a licence or an exemption given under this Act or the regulations.

(3A) Water pollution considerations The appropriate regulatory authority, when determining the action to be specified in a notice relating to an activity that causes, is likely to cause or has caused water pollution, must consider—

(a) the environmental values of water affected by the activity, and

(b) the practical measures that could be taken to restore or maintain those environmental values, and

(c) 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 section.

(4) Occupier’s duty If the occupier who is given a notice is not the person carrying on the activity, the notice is taken to require the occupier to take all available steps to cause the action to be taken.

(5) Reports A prevention notice may require the person to whom the notice is given to furnish reports to the appropriate regulatory authority regarding progress on carrying out the action required to be taken by the notice.

s 96: Am 1999 No 80, Sch 3.6 [1]; 2001 No 56, Sch 1.14 [8]; 2005 No 96, Sch 1 [46]–[48]; 2025 No 1, Sch 1[1].

96A

Prevention notices may be given to directors and related bodies corporate

96A Prevention notices may be given to directors and related bodies corporate

(1) This section applies if —

(a) the appropriate regulatory authority has given a prevention notice under section 96 (the previous prevention notice) to a corporation in relation to an activity, and

(b) the corporation has not complied with the previous prevention notice within the period specified in the notice.

(2) The appropriate regulatory authority may, by written notice (the supplementary prevention notice), direct 1 or more of the following to take the action specified in the notice within the period, if any, specified in the notice to ensure that the activity is carried on in future in an environmentally satisfactory manner—

(a) a current director of the corporation,

(b) a former director of the corporation,

(c) a related body corporate.

(3) Without limiting subsection (2), the action to be taken may include any of the actions specified in section 96(3).

(4) When determining the action to be specified in the supplementary prevention notice, the appropriate regulatory authority must consider the matters specified in section 96(3A).

(5) The supplementary prevention notice may require the person to whom the notice is given to provide reports to the appropriate regulatory authority about progress on the carrying out of the clean-up action.

(6) A reference in subsection (2) to a director of a corporation extends to a person involved in the management of the affairs of the corporation.

s 96A: Ins 2022 No 3, Sch 5[32].

Offence

97 Offence

A person who does not comply with a prevention notice given to the person 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 this section 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.

s 97: Am 2005 No 96, Sch 1 [49]; 2012 No 97, Sch 1.34 [8]; 2024 No 20, Sch 9[5]–[8].

Action in event of failure to comply

98 Action in event of failure to comply

If a person does not comply with a prevention notice given to the person, the appropriate regulatory authority may take action to cause the notice to be complied with by itself or by its employees, agents or contractors.

Commencement of operation of prevention notices or variations

99 Commencement of operation of prevention notices or variations

(1) A prevention notice, or a variation of a prevention notice, operates from the day the notice or notice of the variation is given or from such later day as the notice specifies.

(2) If an appeal is made against a prevention notice or the variation of a prevention notice and the Land and Environment Court directs that the notice is stayed, the notice or variation does not operate until the stay ceases to have effect or the Land and Environment Court confirms the notice or the appeal is withdrawn, whichever first occurs.

s 99: Subst 1999 No 31, Sch 1.37 [6]; 2005 No 96, Sch 1 [50].

100

Fee

100 Fee

(1) The purpose of this section is to enable a regulatory authority to recover the administrative costs of preparing and giving prevention notices.

(2) A person who is given a prevention notice by a regulatory authority must within 30 days pay the prescribed fee to the authority.

(3) The regulatory authority may—

(a) extend the time for payment of the fee, on the application of a person to whom subsection (2) applies, or

(b) waive payment of the whole or any part of the fee, on the authority’s own initiative or on the application of a person to whom subsection (2) applies.

(4) The fee is not payable during the currency of an appeal against the prevention notice.

(5) If the decision of the Court on an appeal does not invalidate the prevention notice, the fee is payable within 30 days of the decision.

(6) A person who does not pay the fee within the time provided under this section is guilty of an offence.

Maximum penalty—200 penalty units.

Note.

Section 110 (5) provides that a fee is not payable for the variation of an environment protection notice under this Chapter.

s 100: Am 2005 No 96, Sch 1 [51] [52].

101

Prohibition on activities

101 Prohibition on activities

(1) Application of section This section applies if the EPA recommends to the Minister that a notice be given under this section because, in the EPA’s opinion, the emission or discharge of pollutants from or within a premises, or class of premises, in which an activity is carried on—

(a) is causing or is likely to cause such harm to the environment, or

(b) is or is likely to be so injurious to public health, or

(c) is causing or is likely to cause such discomfort or inconvenience to any persons not associated with the management or operation of the activity,

that the giving of the notice is warranted.

(2) Notice The Minister may, by written notice, direct, for the period, if any, specified in the notice—

(a) the occupier of the premises, or occupiers of a class of premises, to cease carrying on the activity, or a specified aspect of the activity, at the premises or at premises of the class of premises, or

(b) direct the person, or persons of a class of persons, carrying on the activity to cease carrying on the activity, or a specified aspect of the activity, at any premises.

(3) Occupier’s duty If the occupier who is given a notice is not the person carrying on the activity, the notice is taken to require the occupier to take all available steps to cause the activity to cease.

(4) Further notice The Minister may give further notices on the expiry of the period of the earlier notice if the EPA recommends in accordance with this section that the further notices be given.

s 101: Am 2022 No 3, Sch 5[33] [34].

101A

Prohibition notices may be given to directors and related bodies corporate

101A Prohibition notices may be given to directors and related bodies corporate

(1) This section applies if —

(a) the Minister has given a prohibition notice under section 101 to a corporation, and

(b) the corporation has not complied with the prohibition notice.

(2) If the EPA remains satisfied of the matters stated in section 101(1), the EPA may recommend to the Minister that a notice be given under this section to any of the following persons—

(a) a current director of the corporation,

(b) a former director of the corporation,

(c) a related body corporate.

(3) On the EPA’s recommendation, the Minister may, by written notice, direct the current or former director, or the related body corporate, to do 1 or more of the following—

(a) cease carrying on the activity, or a specified aspect of the activity, for the period, if any, specified in the notice,

(b) take all available steps to end the carrying on of the activity, or a specified aspect of the activity, for the period, if any, specified in the notice.

(4) A reference in subsection (2) to a director of a corporation extends to a person involved in the management of the affairs of the corporation.

s 101A: Ins 2022 No 3, Sch 5[35].

102

Offence

102 Offence

A person who, without reasonable excuse, does not comply with a prohibition notice given to the person 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 this section 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.

s 102: Am 2005 No 96, Sch 1 [53]; 2012 No 97, Sch 1.34 [9]; 2024 No 20, Sch 9[5]–[8].

103

Action in event of failure to comply

103 Action in event of failure to comply

If a person does not comply with a prohibition notice given to the person, the EPA may take action to cause the notice to be complied with by itself or by its employees, agents or contractors.

104

Compliance cost notices

104 Compliance cost notices

(1) Clean-up notice—monitoring or compliance costs The appropriate regulatory authority that gives a clean-up notice to a person may, by notice in writing, require the person to pay all or any reasonable costs and expenses incurred by the authority in connection with—

(a) monitoring action under the notice, and

(b) ensuring that the notice is complied with, and

(c) a matter associated with or incidental to a matter referred to in paragraph (a) or (b).

(2) Clean-up by public authority A public authority that takes clean-up action under section 92 may, by written notice, require 1 or more of the following persons to pay all or part of the reasonable costs and expenses incurred by the public authority in connection with the clean-up action—

(a) the occupier of the premises at or from which the authority reasonably suspects the pollution incident occurred,

(b) a person who is reasonably suspected by the authority of having caused or contributed to the pollution incident.

(3) Prevention notice—monitoring or compliance costs The appropriate regulatory authority that gives a prevention notice to a person may, by notice in writing, require the person to pay all or any reasonable costs and expenses incurred by the authority in connection with—

(a) monitoring action under the notice, and

(b) ensuring that the notice is complied with, and

(c) a matter associated with or incidental to a matter referred to in paragraph (a) or (b).

(4) Prevention notice or prohibition notice—non-compliance A regulatory authority that takes action under section 98 because a prevention notice is not complied with or takes action under section 103 because a prohibition notice is not complied with may, by notice in writing, require the person to whom the notice was given to pay all or any reasonable costs and expenses incurred by it in taking the action.

(5) Without limiting subsection (1)(c) or (3)(c), the costs and expenses incurred by the appropriate regulatory authority in connection with a matter associated with or incidental to a matter referred to in subsection (1)(a) or (b) or (3)(a) or (b) include costs and expenses incurred in connection with an associated matter before the clean-up notice or prevention notice was given.

Note.

See also section 608 of the Local Government Act 1993 for charges for inspection of premises by a local council in the exercise of its functions as a regulatory authority.

s 104: Am 2009 No 56, Sch 1.32 [1]; 2022 No 3, Sch 5[36] [37]; 2025 No 58, Sch 9[36]–[38].

105

Recovery of amounts

105 Recovery of amounts

(1) Recovery of unpaid amounts A regulatory authority or public authority may recover any unpaid amounts specified in a compliance cost notice as a debt in a court of competent jurisdiction.

(2) Recovery by person given notice If the person given a compliance cost notice complies with the notice but was not the person who caused or contributed to the pollution or pollution incident, the cost of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from the person who caused or contributed to the pollution or pollution incident.

s 105: Am 2023 No 30, Sch 2.5[2].

106

Registration of compliance cost notices in relation to land

106 Registration of compliance cost notices in relation to land

(1) If a compliance cost notice has been given by a regulatory authority or a public authority to a person, the authority may apply to the Registrar-General for registration of the notice in relation to any land owned by the person.

(2) An application under this section must define the land to which it relates.

(3) The Registrar-General must, on application under this section and lodgment of a copy of the compliance cost notice, register the notice in relation to the land in such manner as the Registrar-General thinks fit.

(4) If the notice relates to land under the provisions of the Real Property Act 1900, the notice is to be registered under that Act.

107

Charge on land subject to compliance cost notice

107 Charge on land subject to compliance cost notice

(1) Application of section This section applies where a compliance cost notice is registered under section 106, on the application of a regulatory authority or public authority, in relation to particular land owned by a person.

(2) Creation of charge There is created by force of this section, on the registration of the notice, a charge on the land in relation to which the notice is registered to secure the payment to the regulatory authority or public authority of the amount specified in the notice.

(3) When charge ceases to have effect Such a charge ceases to have effect in relation to the land—

(a) on payment to the regulatory authority or public authority of the amount concerned, or

(b) on the sale or other disposition of the property with the written consent of the authority, or

(c) on the sale of the land to a purchaser in good faith for value who, at the time of the sale, has no notice of the charge,

whichever first occurs.

(4) Charge is subject to existing charges and encumbrances Such a charge is subject to every charge or encumbrance to which the land was subject immediately before the notice was registered.

(5) Charge not affected by change of ownership Such a charge is not affected by any change of ownership of the land, except as provided by subsection (3).

(6) Registration of charge is notice If—

(a) such a charge is created on land of a particular kind and the provisions of any law of the State provide for the registration of title to, or charges over, land of that kind, and

(b) the charge is so registered,

a person who purchases or otherwise acquires the land after the registration of the charge is, for the purposes of subsection (3), taken to have notice of the charge.

(7) Removal of charge The regulations may make provision for or with respect to the removal of a charge under this section.

(8) Recovery of costs relating to charge A regulatory authority or public authority that lodges or registers a compliance cost notice under section 106 may, by notice in writing, require the person to whom the compliance cost notice was given to pay all or any of the reasonable costs and expenses incurred by the authority in respect of the lodgment or registration of the compliance cost notice and the registration of any resulting charge (including the costs of discharging the charge). The regulatory authority or public authority may recover any unpaid amounts specified in the notice as a debt in a court of competent jurisdiction.

s 107: Am 2005 No 96, Sch 1 [54].

108

Multiple notices

108 Multiple notices

More than one notice under a provision of this Chapter may be given to the same person.

More sections below

Source text: opening excerpt

Sourced from legislation.nsw.gov.au, CC BY 4.0.

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 .