Introduction

Environmental offences across New South Wales are super important, and there are strict laws to keep nature and people safe. The Protection of the Environment Operations Act from 1997 in NSW sets up a tiered system for these offences. It really stresses stopping and fixing actions that could seriously harm nature.

Recent amendments, including the Environment Protection Legislation Amendment (Stronger Regulation and Penalties) Act 2024 (NSW) (EPLA Act), have intensified penalties and broadened regulatory powers, reinforcing the state’s commitment to environmental protection. The Environmental Protection Authority (EPA) plays a pivotal role in enforcing these laws, ensuring that both individuals and corporations are held accountable for their actions.

Environmental Offences and Penalties in NSW

Offence Tier	Examples of Offences	Penalties for Individuals	Penalties for Corporations	Additional Notes
Tier 1 (Most Serious Offences)	– Leaks, spills, ozone-depleting emissions, illegal waste disposal	– Intentional offences: Up to $2M fine and/or 7 years imprisonment – Negligent offences: Up to $1M fine and/or 4 years imprisonment	– Intentional offences: Up to $10M fine – Negligent offences: Up to $4M fine	– Dealt with by the Land and Environment Court or Supreme Court – Courts may order public notices, environmental projects, NSW Environmental Trust payments, or training
Tier 2 (Strict Liability Offences)	– Water, air, land, and noise pollution – Unlawful waste transport – Failure to report pollution incidents	– Up to $500,000 for non-asbestos offences – Up to $1M for asbestos-related offences	– Up to $2M for non-asbestos offences – Up to $4M for asbestos-related offences	– Daily penalties for ongoing breaches: – Up to $60,000 (individuals) – Up to $120,000 (corporations) – Dealt with by the Land and Environment Court or local courts
Tier 3 (Penalty Notice Offences)	– Licence breaches, water pollution	– First offence: $15,000 – Second offence: $22,500	– First offence: $30,000 – Second offence: $45,000	– On-the-spot fines issued by EPA or authorised officers
Illegal Dumping (50L/50kg+ Waste)	– Dumping waste in public or private open spaces	– Sensitive places: $2,500 fine, max $50,000 – Other locations: $1,000 fine, max $25,000	– Sensitive places: $10,000 fine, max $100,000 – Other locations: $5,000 fine, max $50,000	– Sensitive places include: National parks, state forests, beaches, waterways, schools, hospitals, childcare centres
Littering (General Waste)	– Improper disposal of general waste	– On-the-spot fines: $160 – $500 – Max penalty: $5,000	– On-the-spot fines: Up to $1,000 – Max penalty: $10,000	– Increased penalties under EPLA Act
Littering (Dangerous Materials)	– Disposal of lit cigarettes, e-cigarettes, lithium batteries, syringes, glass, oil, fuel, paint, solvents	– On-the-spot fine: $1,000 – Max penalty: $25,000	– On-the-spot fine: $5,000 – Max penalty: $50,000	– Higher penalties for hazardous waste
Verbal Directions (Litter/Waste Removal)	– Failure to comply with an authorised officer’s direction to remove waste	– Fine: $250 – $500	– Fine: $1,000 – $2,000	– Issued by EPA or authorised officers
Clean-Up Notices	– Failure to comply with a clean-up order for littering or dumping	– On-the-spot fine: $2,500 – Max penalty: $25,000 – Daily penalties apply	– On-the-spot fine: $5,000 – Max penalty: $50,000 – Daily penalties apply	– Notices issued for both minor and major dumping incidents

The Role of the Environmental Protection Authority (EPA)

The EPA serves as the primary regulator for environmental protection in NSW. Tasked with ensuring compliance with environmental laws, the EPA plays a crucial role in safeguarding the environment from various forms of pollution and harmful activities.

Regulatory Powers and Enforcement

The EPA possesses extensive regulatory powers to enforce environmental laws and prosecute offences. These powers include:

• Investigations: The EPA can initiate investigations into suspected environmental offences, utilising its authority to gather necessary information.
• Enforcement Actions: Authorised officers have the power to enter and search premises, require the provision of information or records, and question individuals related to potential offences.
• Prosecution: The EPA is empowered to prosecute environmental offences through the Land and Environment Court or the Supreme Court, depending on the severity of the offence.
• Issuing Penalty Notices: The EPA can issue penalty notices for Tier 3 offences, enforcing immediate compliance without the need for court proceedings.

These regulatory powers enable the EPA to effectively monitor and control activities that may harm the environment, ensuring that offenders are held accountable.

Clean-up and Prevention Notices

The EPA utilises various notices to manage and mitigate environmental harm. These include:

• Clean-up Notices: Directed at individuals or businesses, clean-up notices require the recipient to undertake specific actions to remediate environmental damage. Actions may include cleaning polluted areas, restoring natural habitats, or removing harmful substances.
• Prevention Notices: Issued when the EPA reasonably suspects that an activity is being conducted in an environmentally unsatisfactory manner, prevention notices specify the actions that must be taken to prevent further environmental harm. Recipients have the right to appeal these notices to the Land and Environment Court.
• Prohibition Notices: Reserved for more severe cases, prohibition notices can only be issued by the Energy and Environment Minister upon recommendation from the EPA or WaterNSW. These notices mandate the cessation of specific activities for a designated period.

The issuance of these notices allows the EPA to proactively address environmental issues, ensuring timely and effective responses to potential threats. 

Understanding regulatory obligations is key to maintaining compliance with environmental laws. The right legal advice can help you in staying informed about these measures can help businesses and individuals navigate their responsibilities effectively.

Enforcement and Legal Proceedings

Court Proceedings and Land and Environment Court

Environmental offences in NSW are primarily handled through the Land and Environment Court or the Supreme Court, depending on the severity of the offence. The Land and Environment Court specialises in adjudicating disputes related to environmental law, ensuring that cases are managed by judges with specific expertise in this area. During court proceedings, prosecutors must present evidence demonstrating how the offence has harmed or is likely to harm the environment. Defendants have the opportunity to present their case, including any mitigating factors, to seek a fair judgement.

The court has the authority to impose a range of penalties and orders to address environmental harm. These may include substantial fines, community service, mandatory clean-up projects, or requirements to implement measures that prevent future offences. Additionally, the court can order offenders to publicly acknowledge their wrongdoing, thereby promoting accountability and deterring future violations. The recent amendments introduced by the EPLA Act have further empowered the courts to impose stricter penalties, reflecting the NSW government’s commitment to robust environmental protection.

Penalty Notices and Alternative Dispositions

Penalty notices serve as a crucial tool in the enforcement of environmental laws, allowing for the immediate citation of minor offences without the need for court proceedings. These notices are typically issued for Tier 3 offences, such as minor littering or non-compliance with clean-up orders, and carry fixed fines that vary based on the severity and location of the offence. For instance, illegal dumping in sensitive places can result in higher fines compared to non-sensitive areas.

Alternative dispositions offer a flexible approach to penalising offenders, focusing on remediation rather than punishment. These measures can include mandatory participation in environmental education programs, voluntary clean-up efforts, or the implementation of improved waste management practices. The EPLA Act has enhanced these options, providing the EPA with greater authority to impose alternative penalties that are tailored to the specific circumstances of each offence.

By utilising penalty notices and alternative dispositions, the EPA can efficiently address low-level offences, reduce the burden on the court system, and promote proactive environmental stewardship among individuals and corporations. These tools ensure immediate compliance and encourage long-term behavioural changes that contribute to the overall protection of NSW’s environment.

Recent Legislative Amendments

Increased Penalties and Fines

The EPLA Act has significantly enhanced penalties and fines for environmental offences in NSW. Under the amended Act, maximum court-imposed penalties have been doubled to deter environmental crime effectively.

Key enhancements include:

• Tier 1 Offences: Corporations face a maximum fine of 10 million, while individuals can incur fines up to 2 million for the most severe pollution offences committed wilfully.
• Asbestos-Related Offences: Penalties for offences involving asbestos waste have increased to 4 million for corporations and 1 million for individuals.
• Tier 2 Offences: Maximum penalties for non-asbestos Tier 2 offences have been raised to 2 million for corporations and 1 million for individuals.
• Daily Penalties: The Act introduces doubled daily penalties for continuing offences, ensuring that ongoing violations are met with sustained financial repercussions.

These increased penalties reflect the NSW Government’s commitment to strengthening environmental protection and ensuring that penalties are commensurate with the harm caused to the environment and community.

If you have questions about how these amendments may affect your compliance obligations, our team can provide tailored legal guidance. Contact us to discuss your specific needs.

New Offences and Regulatory Measures

The EPLA Act introduced several new offences and regulatory measures to enhance the enforcement of environmental laws in NSW. These measures aim to address emerging environmental challenges and provide the EPA with greater tools to prevent and respond to environmental harm.

Key new offences and regulatory measures include:

• Small-Scale Illegal Dumping: A new offence under section 144AE targets the illegal dumping of more than 50 litres or 50 kilograms of litter or waste in public or open private places. This measure helps curb minor but widespread dumping activities.
• Name and Shame Power: The EPA can publicly highlight offenders who engage in poor environmental practices, promoting accountability and deterring future violations.
• Enhanced Clean-Up Notices: The Act expands the EPA’s authority to issue clean-up notices for littering and illegal dumping, bypassing the need for development consent and ensuring quicker responses to pollution incidents.
• Recall Powers: New provisions allow the EPA to recall products contaminated with harmful substances, ensuring that dangerous products are swiftly removed from the market to protect public health and the environment.
• Verbal Directions for Waste Removal: Authorised officers can now issue verbal directions to remove litter or waste on the spot, providing immediate action against environmental offences.

These regulatory measures empower the EPA and local councils to enforce environmental laws more effectively, ensuring that environmental offences are promptly addressed and that the environment is better protected from harmful activities.

Conclusion

Environmental offences in New South Wales are critical issues that require strict adherence to legal requirements to protect our natural resources and public health. The Protection of the Environment Operations Act 1997 (NSW) and recent amendments, such as the EPLA Act, have significantly enhanced the penalties and regulatory powers of the EPA, ensuring robust enforcement against pollution, illegal waste disposal, and other harmful activities.

To ensure your business complies with these stringent environmental laws and to safeguard against potential penalties, contact our experienced legal team today. Our dedicated professionals offer unparalleled expertise in navigating environmental legislation, helping you protect both your operations and the environment effectively.

Frequently Asked Questions