On 24 February 2022, the Environmental Legislation Amendment Bill 2021 (the Bill) was passed in NSW Parliament, introducing significant changes to legislation administered by the NSW Environmental Protection Authority (EPA), including:
- the Protection of the Environment Operations Act 1997 (POEO Act)
- the Contaminated Land Management Act 1997 (CLM Act)
- the Pesticides Act 1999
- the Radiation Control Act 1990
- the Protection of the Environment Administration Act 1992
The Bill also makes consequential amendments to other Acts to give effect to these changes.
Currently, under the CLM Act, the EPA can only issue clean up or prevention notices for significantly contaminated land, as determined by the EPA. This often requires investigations to be undertaken by the EPA in order to reach a finding of significance, which takes time and resources and delays action.
Changes introduced by the Bill to the POEO Act will now empower the EPA to issue clean up notices as soon as it is notified under the CLM Act, regardless of whether the land is determined to be “significantly contaminated” under the CLM Act. Such clean up notices will also be able to be issued to persons reasonably suspected of having contributed to (rather than causing) a pollution incident.
Furthermore, the EPA will be able to register public positive covenants on land titles pursuant to section 88E of the Conveyancing Act 1919 which reflect obligations under surrendered or revoked conditions of licences, and require financial assistance to support ongoing remediation or licence conditions. Importantly, the EPA is specifically empowered to enforce the restriction or covenant against not only the owners or lessee but also the mortgagee of the land.
The Bill will also introduce a new general offence in the POEO Act for providing false or misleading information to the EPA, which will extend to all directions and managers of a corporation.
Changes to the POEO Act will result in increased exposure for directors, managers and related entities, including:
- Empowering the EPA to issue personal clean up notices;
- Empowering the EPA recover proceeds of an environmental crime from directors, persons concerned with the management of the corporation and related body corporates who benefitted from the commission of the offence;
- Extending criminal liability to directors, persons concerned with the management of the corporation and related body corporates for receiving monetary benefits;
- Extending the “fit and proper person” test to enable the EPA to consider the environmental record of current and former directions or a corporation or of its related bodies corporate when making licensing decisions about a licence held by the corporation.
The changes introduced by the Bill will update our environmental protection laws to ensure penalties and enforcement powers continue to be effective in preventing, enforcing, managing and remediating environmental crimes. The Bill is now awaiting assent by the Governor.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
