Pollution and environmental harm

Contributed by Jean-Pierre Clement and Golnar Nabizadeh and current to 1 September 2005

The Environmental Protection Act 1986 (WA) (“the Act”) is the primary source of control on pollution and environmental harm in Western Australia. The Act contains significant penalties for offences relating to pollution and environmental harm, and it is binding on the State. Importantly, a person does not have to intentionally cause pollution or environmental harm to contravene the Act.

The Act applies to individuals and companies. In relation to companies, the directors and managers of a company are deemed to be liable where the company has committed an offence under the Act, unless they can prove that they did not know and could not have reasonably been expected to know about the offence, or that they used due diligence and reasonable precautions to prevent the commission of the offence.

POLLUTION CONTROLS

What is “pollution”?

Under the Act, pollution is defined as “a direct or indirect emission that is detrimental or degrading to the environment” (s.3A(1)). An emission includes a discharge of waste, emission of noise, odour or electromagnetic radiation and transmission of electromagnetic radiation (s.3).

In Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 223 the Supreme Court of Western Australia held that the term “pollution” means “to make foul, impure or filthy”. It did not include disturbance of the environment caused by (for example) clearing native vegetation. The limitations imposed by this definition were addressed in 2003 by the introduction of the offences of causing serious and material environmental harm (see ‘Environmental harm’ below).

General offence of causing pollution

It is an offence for a person to:

• cause pollution or allow pollution to be caused (ss.49(2) and (3));
• emit or allow to be emitted noise, odour or electromagnetic radiation which interferes with the health, convenience or amenity of any person (ss.49(4) and (5); or
• place waste in a position where it is likely to cause pollution (ss. 50(1) and (2).

Penalties for intentionally causing pollution range from $500,000 for an individual to $1 million for a body corporate (Schedule 1).

Noise pollution

In addition to the general penalties for causing pollution, the Act deals with noise pollution from premises and public places and includes vibrations in its definition. A person who uses or allows the use of equipment on premises in a way that causes or emits unreasonable noise from those premises commits an offence (s.79(1)). An action against the alleged offender can be commenced by:

(a) three or more persons, who each occupy the premises and claim to be directly affected by the alleged offence (though in limited circumstances the Court may allow the action may be commenced by less than three people);
(b) an authorised person (for example, a local government health officer); or
(c) a police officer (s.79).

NOISY EQUIPMENT

If a person installs on a premises any equipment that he or she could reasonably have been expected to know would emit unreasonable noise when in operation, that person commits an offence (s.80(1)). Accordingly, if the occupier of that premises is convicted of committing an offence for emitting unreasonable noise because of that installation, the occupier may recover the cost of that installation, and any penalty imposed on him or her from the other person by action in the relevant court (s.80(2)).

Noise from vehicles and equipment other than vehicles and vessels also constitutes an offence if it does not comply with noise emission standards (ss. 84, 85).

What action can be taken to abate the noise?

If an authorised person or police officer considers that the noise from premises is unreasonable, he or she may give written or oral directions to the occupier or whoever is considered to be creating the noise to stop making the noise. Other actions such as seizure of equipment may be taken to prevent the emission of the unreasonable noise, and reasonable force may be used by the authorised person or police officer to prevent the noise from continuing.

Two of the provisions of the Act also address offences in relation to emission of odour and electromagnetic radiation from ‘prescribed premises’ (ss.53 and 56).

Smoke and air pollution

The general pollution controls discussed above apply to air pollution. In addition, there are a number of different controls applying to specific areas or activities where smoke and air pollution concerns have been raised. For example, special air pollution laws apply in Kalgoorlie and Kwinana, where industrial developments raise particular health and environmental issues.

BACKYARD INCINERATORS

Most local governments in the Perth metropolitan area have moved to prohibit the incineration of waste in domestic backyards. For example, the City of Armadale’s Environment, Animals and Nuisance Local Laws 2002 states that an owner or occupier of land not exceeding 1,200m2 “shall not set fire to, or cause or allow to be set on fire, any rubbish or refuse whatsoever on that land.” Check with your local government to see what controls apply.

SMOKE FROM CHIMNEYS

Recent changes to the Health Act 1911 (WA) give local governments the power to take action to control a nuisance caused by smoke coming from domestic chimneys (s.182(11). A person causing a nuisance by the operation of a private fireplace commits an offence under the Health Act, and the local government can undertake remedial work and charge the owner the costs of doing so.

SOLID FUEL HEATERS

The Environmental Protection (Domestic Solid Fuel Burning Appliances and Firewood Supply) Regulations 1998 make it an offence for a person to sell a solid fuel heater unless the heater complies with emission standards (AS4013) and is properly labelled. This regulation does not apply to a heater that is sold as part of a building.

SALE OF GREEN FIREWOOD

It is an offence to sell domestic firewood within the Perth metropolitan area (including the City of Mandurah) with a moisture content in excess of 20% except where the person has a permit or the sale is to a firewood wholesaler or retailer.

SMOKE FROM COMMERCIAL ACTIVITIES

The Environmental Protection (Unauthorised Discharges) Regulations 2004 make it an offence for a person, in the course of carrying out a commercial activity, to cause visible smoke by burning certain types of materials (such as treated timber, plastic, waste oils etc).It is also an offence for a commercial operator to burn any material that discharges dark smoke into the environment for more than four minutes in any hour.

It is a defence to these charges that the person had approval to emit the smoke (for example, under the terms of a works approval or licence) or that it was an emergency or accident.

ENVIRONMENTAL HARM

What is “environmental harm”?

Environmental harm is a relatively recent concept and is defined in the Environmental Protection Act 1986 as direct or indirect harm to the environment including the:

• Removal or destruction of native vegetation, the habitat of native vegetation or indigenous aquatic or terrestrial animals; or
• Alteration of the environment to its detriment or potential detriment (s.3A(2).

Environmental harm offences

The Act recognises two different degrees of environmental harm and both constitute an offence under the Act.

• Material harm means harm that is neither trivial nor negligible, or which results in cumulative financial damage exceeding $20,000 (that is, the cost of making good the damage caused is more than $20,000). The maximum penalty for intentionally causing material environmental harm is $250,000 and/or imprisonment of 3 years (or a $500,000 fine for a body corporate).

• Serious harm means harm that is irreversible, high impact, of wide effect or has a cumulative financial damage exceeding $100,000. The maximum penalty for intentionally causing serious environmental harm is $500,000 and/or imprisonment of 5 years (or a $1 million fine for a body corporate).

Additionally, the owner of premises must inform the Department of Environment of any unauthorised discharge of waste which is likely to cause pollution or environmental harm (s.72). Failure to do so is an offence for which the maximum fine is $50,000.

Defences to charges of causing pollution or environmental harm

There are four defences under the Act (see s.74A):

(a) Approved activity – that the act causing the pollution or environmental harm was approved under another provision of the Act, for example, licence, works approval or clearing permit.

(b) Due diligence – that the person took all reasonable steps and exercised due diligence to prevent the commission of the offence.

(c) Accident – that the emission or act occurred because of accident and that the person took all reasonable steps to prevent the emission or act.

(d) Emergency – that the emission or harm resulted from an activity that was intended to avoid injury to human health or to prevent irreversible damage to a significant portion of the environment. The accused must establish that he or she took all reasonable steps to avoid the damage.

Two particularly important points must be noted in relation to these defences. Firstly, to raise any of the defences of due diligence, accident or emergency, the accused must have notified the Chief Executive Officer (CEO) of the Department of Environment of the offence as soon as practicable after the offence was committed (ss. 74(1)(b) and (1a)). Secondly, the accident and emergency defences are not available for the offence of causing pollution.

WORKS APPROVAL AND LICENSING

The Act establishes a works approval and licensing system which allows certain polluting activities (called prescribed premises) to operate. A works approval is for the establishment or commencement of prescribed premises, while a licence is for the on-going operation of those prescribed premises.

The Regulations contain an extensive list of ‘prescribed premises’, too comprehensive to be reproduced here. Examples include premises on which herbicides, insecticides or pesticides are manufactured by a chemical process and premises on which clay bricks can be manufactured at a volume of more than 1,000 tonnes per year.

What conditions can be placed on approvals and licences?

A works approval or licence may be granted subject to such conditions as the CEO considers appropriate relating to the prevention, control, abatement or mitigation of pollution or environmental harm (s.62). The types of conditions can include requiring the person to:

• install or operate equipment to prevent or control pollution;
• take measures to minimise the likelihood of pollution or environmental harm;
• monitor operations; and
• provide audit compliance reports to the CEO (ss. 62A(b), (c), (g), and (p)).

Can the public comment on works approval and licence applications?

Before granting a licence or works approval, the CEO must seek comments from any public authority or person with a direct interest in the proposal. There is also a right to appeal to the Minister for the Environment against the conditions imposed in a licence or works approval (s.102). Such an appeal must be in writing, be accompanied by a fee of $50 and be received by the Minister within 21 days of the date the licence holder received notice of the conditions. For further information, see: www.appeals.wa.gov.au.

Can a works approval or licence be suspended or revoked?

If the holder of a works approval or licence contravenes a condition of either permit, then that person commits an offence. Importantly, the owner of the premises to which a licence applies is deemed to have breached the permit him or herself, even if another individual acted contrary to the licence conditions.

In the case of a breach of a works approval or licence condition, the permit can be either suspended or revoked. There are other grounds for such action including, for example, that the information contained in or supporting the application was false or misleading in relation to a material claim. However, the CEO must give notice in writing before any action is taken to amend, suspend or revoke an approval or licence (s.59B(2)).

Appeals where an application is rejected or a permit suspended or revoked

A person may within 21 days of being notified of the refusal or suspension/revocation lodge with the Minister an appeal in writing setting out the grounds of that appeal (s.102(1)). Further, a third party also has standing to appeal if he or she disagrees with a refusal or suspension/ revocation. He or she can lodge an appeal about that matter within the same 21 day period as the applicant for the works approval or licence (s.102(3)).