(02) 6243 3460
The Environment Protection Act 1997 is the Australian Capital Territory’s main legislation for managing pollution. It requires that certain activities be licensed and subject to environmental standards. In addition it places a general environmental duty on all individuals and businesses in the community to take steps to prevent or minimise pollution that their activities may cause. The Act and its regulations are enforced by the Environment Protection Authority. Pollution is also governed by the common law.
The Environment Protection Act 1997 (the Act) creates the Environment Protection Authority (EPA) which is a statutory position held by a public servant. Currently the position is held by the Director of Environment Protection within the Department of the Environment, Climate Change, Energy and Water [s.11]. The EPA administers the Act and any other functions conferred on it by other legislation having regard to the objects of the Act [s.12].
The EPA regulates pollution through the use of environmental authorisations, environmental protection agreements, accredited codes of practice, environmental improvement plans, environment protection orders and prosecutions.
The objects of the Act [s.2] include:
To pollute is defined as causing or failing to prevent the discharge, emission, depositing, disturbance or escape of a pollutant. A pollutant is a substance which may cause environmental harm when discharged, emitted, deposited or disturbed. This includes:
Environmental harm is defined as any impact on the environment that as a result of human activity has the effect of degrading the environment whether temporarily or permanently [s.5].
A pollutant is taken to cause environmental harm if the pollutant ‘exceeds the prescribed measure’ or is a ‘prescribed pollutant’ [s.45].
Some activities are specifically not regulated by the Act, including trains, aircraft, certain motor vehicles or pollution resulting solely from the appearance or siting of a structure [s.8].
The Act encourages responsibility for the environment by imposing, a general environmental duty on the whole community, to take all practicable and reasonable steps to prevent or minimise environmental harm or environmental nuisance resulting from their activities [s.22]. However, failure to comply with this general environmental duty is not in itself an offence, and does not necessarily constitute grounds for action under the Act [s.22(3)]. There is, however, a duty to notify the EPA of an actual or threatened environmental harm [s.23].
It is an offence to undertake certain polluting activities without an authorisation [Part 8].
There are three situations where environmental authorisations are required:
There are three kinds of authorisation:
Authorisations most commonly authorise a named person to conduct the activity in a specified location, subject to any specific conditions. They require the payment of a fee, which can vary substantially from several hundred to tens of thousands of dollars, depending on the activity and the level of pollutants released to the environment. These fees are set out in the Environment Protection (Fees) Determination 2009 (No 1) DI2009-110.
Load based licensing can form part of an authorisation as a means of implementing the polluter pays principle. The fees include a component, which is applied as a rate per kilogram of pollutant, that the authorisation holder releases into the environment. Pollutant loading has been applied in the ACT for sewerage treatment works, incinerators and petroleum storage facilities.
Conditions can be attached to an authorisation to ensure compliance with the Act [s.51]. Conditions may require that an applicant:
The EPA is required to place a notice of an application for an authorisation in the Legislation Register and the Canberra Times, inviting written submissions on the application within fifteen days [s.48]. However, the Minister can make a declaration that public consultation is not required for a particular prescribed activity where there is no impact, or minimal impact on the environment. This declaration is a disallowable instrument and therefore must be notified, presented and may be disallowed by the Legislative Assembly. A notice of the grant of an authorisation must also be published in the Legislation Register and the Canberra Times.
The EPA can vary environmental authorisations [s.60]. Such a variation does not have to be publicly notified, although it is a disallowable instrument.
There are many possible consequences for breaching an authorisation. Depending on the nature and scope of the breach, there could be criminal or civil penalties imposed on the individuals or businesses, or a suspension or cancellation of the authorisation. The EPA may, by notice in writing, suspend or cancel an environmental authorisation where it has reasonable grounds for believing that the holder has contravened the authorisation, an environment protection order or a provision of the Act and the breach results in serious or material environmental harm [s.63].
Authorisations are public documents and may be viewed on request, at no cost. These may be viewed at the Environment Protection Authority Office, Macarthur House, 12 Wattle Street, Lyneham ACT.
Environmental Protection Agreements [Part 7] are developed between the EPA and people conducting less harmful Class B activities, listed in Schedule 1 to the Act. These agreements are formal written documents that have effect for a specific period of time. There is no fee payable for an agreement. An agreement does not relieve a party from any obligation or duty under the Act or any other law [s.40]. Such agreements are designed to broaden the obligations of the holder of an authorisation to include items such as complying with industry codes of practice.
These agreements are notified in the Legislation Register and Canberra Times as having been entered into but there is no public input by way of submissions. The Minister may declare that the notification requirements for agreements do not apply if the Minister is satisfied that the implementation of the agreement is not likely to cause any material environmental harm [s.41(5-6)]. Such a declaration is a disallowable instrument scrutinised by the Legislative Assembly and notified in the ACT legislation register. Members of the public can view agreements at the EPA.
If an environmental protection agreement is breached, the EPA has the capacity to suspend the agreement. The holder will then have to apply for a legally binding environmental authorisation, for which he or she must pay the appropriate fees. When a breach of the Act has occurred, prosecution may take place.
The Act provides for Accredited Codes of Practice which outline ways of achieving compliance with the general environmental duty [s31-33]. Some Codes have been accredited, such as the waste collection code of 1998, however the EPA tends to provide a range of less formal guidelines.
An Environmental Improvement Plan is a formal plan to rectify problems, minimise environmental impacts and achieve compliance with the Act [Div 9.1]. It can be put in place either to prevent or rectify harm. The EPA can require a plan if there is, or is likely to be, serious environmental harm caused by a contravention of the Act and the EPA considers that an improvement plan will help to rectify the situation [s.69]. These plans can be required as part of an environmental authorisation, or alternatively can be prepared on a voluntary basis. Environmental Improvement Plans can be viewed by the public at the EPA.
Where the EPA has reasonable grounds for believing that a person has contravened or is contravening an environmental authorisation or a provision of the Act, it may serve an environment protection order on the person [s.125]. The order is in writing, and identifies:
The order may also be served on the occupier of contaminated land. In this case, the order will specify:
Orders can specify particular requirements or things to be done or not done, including:
The Act is supported by Environment Protection Policies (EPPs). They are non-binding guidelines on how the EPA will administer and interpret the Act [s.30]. Nine EPPs have been finalised, one general one and eight specific EPPs. These are:
There are certain requirements for developing EPPs [Part 4]. First a draft is developed by the EPA. It is then made available for public comment for forty working days, after a notice has been published in the ACT legislation register and the Canberra Times. Comments received during this period are considered and the EPA may revise the draft EPP in accordance with the suggestions received [s.26]. Finally, the policy goes to the Minister for Environment for his or her consent.
The Act utilises a range of economic instruments, with the intent that financial benefits are associated with less polluting activities, some of these measures include:
An authorised officer can serve an infringement notice on a person if the officer has reasonable grounds for believing that a person has committed a minor environmental offence [s.120 Magistrates Court Act 1930]. These minor offences are listed in Schedule 1 to the Magistrates Court (Environment Protection Infringement Notices) Regulation.
The infringement notice includes an on-the-spot fine. The maximum fine for breach of an environmental regulation is ten penalty units, which is currently $1,100 for an individual or $5,500 for a corporation. If the fine is not paid within twenty-eight days a final infringement notice is issued that adds an administrative charge to the fine. A person may also apply for a withdrawal of the notice. Prosecution for minor environmental offences can only occur if the person has not responded to the second and final notice and a period of fourteen days after the date of the notice has elapsed.
More serious offences are dealt with in Part 15 of the Act. The main offences are: causing serious or material environmental harm [s.137, 138], causing an environmental nuisance [s.141] and placing a pollutant where it could cause harm [s.142], Penalties are higher if the environmental harm is ‘material’ or ‘serious’, which is when the harm:
Each offence carries different penalties according to whether a person:
A penalty unit is currently $110 for an individual and $550 for a corporation [s.133 Legislation Act 2001 (ACT)]. There are further specific offences prescribed under Schedule 2 of the Act.
Generally, governmental entities are not immune from the provisions of the Act [s.10]. However, they are specifically exempt from prosecution in matters concerning:
The Environmental Defender’s Office is a non-profit community legal centre based in Canberra, advising on environmental and planning law with an aim of increasing public awareness of environmental laws and remedies.
We advise on questions of Commonwealth and Australian Capital Territory law.
We offer a free telephone advice service on environmental law questions. Appointments with our solicitor are also available.
First Floor, 14 Childers Street (opposite the Street Theatre)
Canberra City ACT 2601
Telephone: (02) 6243 3460
Fax: (02) 6243 3461
Email: EDO (ACT) Office
edoact@edo.org.au
GPO Box 574, Canberra ACT 2601
Under the Act an eligible person may apply to the ACT Civil and Administrative Tribunal for review of certain decisions made by the EPA [s.136B]. An eligible person is a person to mentioned in column 4 of Schedule 3 to the Act or any other person whose interests are affected by the decision. Numerous types of decisions may be reviewed, including:
In addition it is possible to apply to the Supreme Court for an injunction [Division 13.3]. Where there is a breach or a likely breach of the Act, an environmental authorisation or protection order, the Supreme Court may order the respondent to remedy or to stop committing the breach [s.128]. If the matter is urgent, it is possible to seek an interim order, but the court must be convinced that there is a real or significant likelihood that serious or material damage will occur before the application is decided [s.129].
Applications for injunctions can be made by the EPA or by any other person. The Supreme Court may grant leave for ‘any other person’ to make an application if the person has first asked the EPA to take action and it has failed to do so, and the proceedings are in the public interest [s.127].
The Supreme Court may make an order for security of costs, which involves the applicant having to prove that they can pay the costs of the other party if the application fails. Additionally, failure of the case may result in the applicant having to pay compensation to the person alleged to be in breach [s.131-132].
The Act also provides that civil and common law remedies are not affected or diminished by its operation [s.9] stating that compliance with the Act "is not, of itself, evidence that a common law duty of care has been satisfied". In other words, the Act suggests that a nuisance action may succeed even if there is an apparent compliance with the legislation. For example, pollution may be found to amount to a nuisance at common law, even if the conduct or activity causing it is authorised and lawful under the Act.
The law described in this Fact Sheet is current at 31 March 2010.
The ACT EDO Fact Sheets have been designed to give readers plain English background knowledge to planning and environmental decision making in the ACT. They cannot replace the need for professional legal advice in individual cases. Please contact us as we may be able to provide additional advice.
While every effort has been made to ensure the content is as accurate as possible, the EDO does not accept any responsibility for any loss or disadvantage resulting from reliance or use of this work.
Duplication and reproduction of the information provided in any ACT EDO Fact Sheet is permitted with acknowledgment of the ACT EDO as source.
The ACT EDO Fact Sheets Project was carried out with the assistance of funds made available by the ACT Government under the ACT Environment Grants Program.