Environment Protection Legislation Amendment (Stronger Regulation and Penalties) Act 2024

This guidance provides information to assist local councils to understand the impact of the Environment Protection Legislation Amendment (Stronger Regulation and Penalties) Act 2024 (the Act) on their regulatory activities, particularly in relation to managing small-scale illegal dumping and litter. All provisions in the Act, with the exception of one, commenced on 3 April 2024. 

Purpose of the Act

The Act amends environment protection legislation administered by the NSW Environment Protection Authority (EPA). The reforms address emerging issues and urgent regulatory challenges. Amendments include increasing penalties and strengthening regulatory powers with the aim of:

• improving protection of human health and the environment
• ensuring those that commit environmental crimes can be held to account
• ensuring polluters pay and that penalties are commensurate with the harm or risk of harm to human health and the environment
• reducing the cost to government, community and businesses in responding to and cleaning up pollution, hazardous materials and illegal dumping
• making certain improvements to ensure the legislation remains fit for purpose.

Increased maximum penalties

The Act increases maximum penalties for certain offences under the Protection of the Environment Operations Act 1997 (POEO Act) to ensure they effectively deter environmental crime and are proportionate to the potential harm caused. Many penalties had not increased since 2005 and some were lagging behind other Australian jurisdictions.  

New maximum penalties for key offences in the POEO Act

Note: Tier 1 offences are the most serious offences. Tier 1 offences can be categorised as offences where there is proof of wilfulness or negligence, and harm or likely harm to the environment. Tier 2 offences consist of all other offences under the Act and regulations. The prosecution is not required to prove intent for these offences.

The Act also doubles existing daily penalties for continuing offences and introduces new daily penalties for continuing offences under sections 143, 144AA and 144AAA of the POEO Act.

Penalties for various other Tier 2 offences under the POEO Act have been doubled, such as non-compliance with a clean-up notice, breaching a licence condition, and pollution of land, water and air, and offences under section 211.

Increased penalty notices (on-the-spot fines)

It is important that penalty notices reflect the harm or potential harm of the offences and are not simply seen as a cost of doing business. On-the-spot fines have therefore increased for many offences under the POEO Act and certain offences also have higher fines for second contraventions of the same offence. Many common offences, such as committing water pollution or non-compliance with a clean-up notice, now have fines of:

• $15,000 for a first offence and $22,500 for a second offence for individuals
• $30,000 for a first offence and $45,000 for a second offence for corporations.

A person would need to commit both the first offence and second offence after the commencement of the Act (i.e. on or after 3 April 2024) for the higher penalties for second and subsequent offences to apply to that second offence.

Penalty notice amounts equal when issued by the EPA or a local council

Penalty notice amounts are now the same regardless of whether they are issued by an EPA officer or a Class 1 enforcement officer (including council officers). This change recognises the significant role that local councils play in the investigation and management of environmental crimes. It also recognises that the level of harm caused by an incident remains the same regardless of who investigates the incident and issues a penalty notice. This change only affects the penalty notice amounts for some offences under the POEO Act and a few offences under the Protection of the Environment Operations (Waste) Regulation 2014.

New offence for small-scale illegal dumping

Small-scale illegal dumping is a significant and costly problem for public land managers, such as councils, particularly in or on sensitive places. The Act responds to calls for reform in this area by introducing a new offence of dumping more than 50L or 50kg of litter or waste in a public place or an open private place or causing or permitting that conduct (section 144AE of the POEO Act).

The offence includes thresholds for both weight and volume to prevent perverse outcomes for litter or waste that has low weight but high volume and vice versa. The 50L threshold is not limited to waste or litter that is a liquid. Volume in this context is, broadly, the multiple of the length, width and height of an object.

In the field, officers can estimate or measure waste or litter using whichever units of measurement are convenient (for example, measuring volume in cubic metres or weight in tonnes) but those measurements will need to be converted to kilograms or litres to determine if the threshold for the illegal dumping offence has been met. To convert between measurements of weight and volume, you need to know the approximate density of the object being measured.

Items that when discarded in a public place or open private place may trigger an illegal dumping offence include:

• any litter or waste that exceeds a quarter of a 240L wheelie bin or over half of a 120L wheelie bin
• any litter or waste that exceeds two small (25L) storage tubs or one medium to large (50L) storage tub or moving box
• bulky furniture items, such as cupboards, desks, beds, lounges, and dining tables in most cases would likely exceed 50L
• two standard tyres of a 205/55/R16 size would likely exceed 50L
• fridges, washing machines and dryers in most cases would likely exceed 50L, and
• mattresses in most cases would likely exceed 50L.

This list is not exhaustive and should not be relied on in determining whether an illegal dumping offence has occurred. Officers will need to appropriately determine exceedance of the illegal dumping threshold on a case-by-case basis.

Difference to existing offences for littering and unlawful disposal of waste

Before the new illegal dumping offence commenced, there was a gap between the seriousness and level of penalties of littering offences and common waste offences under the POEO Act. The new offence is intended to sit between littering offences and common waste offences, on the basis that:

• the illegal dumping offence has higher maximum penalties and penalty notices than most littering offences in Part 5.6A, but lower maximum penalties and penalty notices than common waste offences in Part 5.6, and
• the new offence should be used for small-scale dumping, whereas certain offences in Part 5.6 are more appropriate for significant incidents of unlawful transport or depositing of waste.

When waste has been unlawfully deposited, it is important to consider which offence is the most appropriate based on the seriousness of the incident, what penalties would be appropriate for the harm or potential harm and the specific wording of the offences. For example, the offences in sections 143 and 144 apply in different circumstances compared to section 144AE as shown by the provisions using different wording and referring to different actions. Additionally, the land pollution offence in section 142A of the POEO Act should be considered where the depositing of litter or waste meets the threshold for land pollution (as defined in the Dictionary of the POEO Act).  

Illegal dumping in sensitive places

The following places are considered a ‘sensitive place’ and attract greater maximum penalties or penalty notices when the illegal dumping occurs in or on:

• land acquired or reserved under the National Parks and Wildlife Act 1974, including land acquired under Part 11 of that Act that is yet to be reserved
• a State forest or flora reserve within the meaning of the Forestry Act 2012
• land that is a park within the meaning of the Local Government Act 1993
• a beach within the meaning of the Coastal Management Act 2016
• waters (as defined in the POEO Act, which includes places like stormwater channels, creeks, lakes, swamps and dams)
• the grounds of a childcare centre, hospital or school to the extent the grounds are a public place or private open space, or
• another place prescribed by the regulations.

Illegal dumping penalties

Enforcement officers, as prescribed in Schedule 6 of the Protection of the Environment Operations (General) Regulation 2022, can issue penalty notices (on-the-spot fines) for an illegal dumping offence. This includes enforcement officers appointed by the EPA, local councils, and the Department of Climate Change, Energy, the Environment and Water (which includes the National Parks and Wildlife Service), as well as police officers.

Illegal dumping penalties

If a defendant is charged with illegal dumping in relation to depositing litter, a court can instead find the person guilty of littering under section 145 as an alternative verdict. The alternative verdict is available if a court is satisfied that the defendant is not guilty of illegal dumping but is satisfied on the evidence that the defendant is guilty of an offence under section 145. The alternative verdict is only available in relation to depositing litter, not waste, as section 145 is only concerned with litter.

Stronger littering offences

Increased litter penalties

The Act increases the maximum penalties and penalty notices (on-the-spot fines) for multiple littering offences. This recognises the visual, health, environmental and economic impacts of litter and the need to deter people from littering.

Littering penalties

Littering dangerous materials

Section 145A of the POEO Act previously included an offence of aggravated littering where someone deposits litter in ‘circumstances of aggravation’. These circumstances referred to the deposit of litter causing, contributing to, or being reasonably likely to cause appreciable danger or harm.

The Act makes changes to:

• rename the offence in section 145A to ‘Littering dangerous materials’
• remove the need to prove something was littered in circumstances of aggravation and therefore simplify the offence
• include a list of material which are ‘dangerous materials’, which includes some items not previously mentioned in section 145A:
  • lit cigarette or cigarette butt
  • e-cigarette
  • lithium battery or an item that contains a lithium battery
  • a syringe
  • glass, oil, fuel, grease, paint or solvent, or
  • a substance, material or other thing prescribed by the regulations.
• increase the maximum penalties and penalty notices for the offence.

New regulatory tools for tackling litter and small-scale illegal dumping

Verbal direction to remove litter or waste

Authorised officers, including council officers, now have powers to give verbal directions to remove litter or waste from a public place to:

• the person who deposited the litter or waste,
• the person who caused or permitted the depositing of the litter or waste.

The verbal direction to remove litter or waste under section 144AH does not need to be followed-up in writing. However, authorised officers may choose to create a record of the verbal direction for evidentiary purposes.

This power provides an additional tool to combat litter and small-scale illegal dumping, empowering officers to respond quickly and resolve such issues on the spot.

Who can exercise this power?

The definition of ‘authorised officer’ in section 144AD sets out who can issue verbal directions. This includes officers of various public land managers, including local councils and the National Parks and Wildlife Service, to ensure they have powers to address littering and illegal dumping when it occurs.

These powers can be used in addition to any powers of the appropriate regulatory authority (ARA) under section 6 of the POEO Act for non-scheduled activities. For example, this means that councils can issue clean-up notices for littering and illegal dumping that occurs in their local area, including in parks, but various authorised officers can issue verbal directions to remove waste or litter and issue penalty notices if the direction is not complied with.

Penalties for non-compliance

• Enforcement officers, as prescribed in Schedule 6 of the Protection of the Environment Operations (General) Regulation 2022, can issue penalty notices (on-the-spot fines) to:
  • individuals - $250 if the litter or waste is no more than 50L or 50kg or $500 where the litter or waste exceeds 50L or 50kg
  • corporations - $1,000 if the litter or waste is no more than 50L or 50kg or $2,000 where the litter or waste exceeds 50L or 50kg.
• Maximum penalties also apply for this offence:
  • individuals - $5,000 if the litter or waste is no more than 50L or 50kg or $10,000 where the litter exceeds 50L or 50kg
  • corporations - $10,000 if the litter or waste is no more than 50L or 50kg or $20,000 where the litter or waste exceeds 50L or 50kg.

The classes of enforcement officers who may issue a penalty notice for non-compliance with a verbal direction are the same as those who may issue a penalty notice for an illegal dumping offence (as mentioned above).

Clean-up notice powers for litter and waste

The new laws will make it easier to issue clean-up notices to address waste and litter issues and overcome some of the technical issues that may have made this more difficult in the past. The Act inserts a new provision which provides that clean-up notices can be issued for littering under Part 5.6A or illegal dumping under section 144AE, as if it was a pollution incident (section 144AG). If the local council is the ARA for the premises under section 6 of the POEO Act, it may issue a notice to:

• the owner or occupier of a premises where littering or illegal dumping has occurred,
• a person who it reasonably suspects caused or contributed to a littering or illegal dumping incident.

Ordinarily, local councils will be the ARA for the dumping of waste or litter by individuals or companies on public places in their local area, such as parks. An example of where a local council may issue a clean-up notice to an owner or occupier of a premises is where littering or illegal dumping has taken place in their local area on a premises with no environment protection licence.  

Different maximum penalties and penalty notices (on-the-spot fines) apply for non-compliance with this type of clean-up notice. A lower admin fee applies for issuing the notice, as set out in clause 151 of the Protection of the Environment Operations (General) Regulation 2022.

A new template will be available for this clean-up notice. The EPA’s Powers and Notices Guideline for Authorised Officers and Enforcement Officers under the POEO Act explains more about using notices.

Penalties for non-compliance

• Penalty notices (on-the-spot fines) for non-compliance are $2,500 for individuals and $5,000 for corporations.
• Maximum penalties for non-compliance are $25,000 for individuals and $50,000 for corporations, and for a continuing offence, both individuals and corporations attract a further penalty of $6,000 for each day the offence continues.

Issue of Chapter 4 notices

The EPA may issue Chapter 4 notices that relate to multiple premises in more than one Local Government Area.

Under section 6 of the POEO Act, a local council is the appropriate regulatory authority for non-scheduled activities in their local government area subject to certain exceptions. The EPA is the appropriate regulatory authority for scheduled activities and other activities as specified in section 6.

The Act makes it clear that the EPA may issue a single notice under Chapter 4 of the POEO Act for pollution incidents that relate to multiple premises or local government areas, even if the EPA is not the ARA for all premises or areas (section 108A of the POEO Act).

This change streamlines the EPA’s response to incidents occurring at multiple premises and across multiple local government areas, including state-wide pollution incidents.