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ENVIRONMENT PROTECTION REGULATION 2005 (NO 38 OF 2005)
2005
THE LEGISLATIVE ASSEMBLY
FOR THE
AUSTRALIAN CAPITAL
TERRITORY
ENVIRONMENT
PROTECTION REGULATION 2005
EXPLANATORY
STATEMENT
Circulated
by the Authority of the
Minister for Environment
Mr Jon
Stanhope MLA
ENVIRONMENT PROTECTION REGULATION
2005
These amendments include a number of offences where strict liability applies
to a specific element of the offence or to the offence. Section 23 of the
Criminal Code 2002 provides that if a law that creates an offence
provides for strict liability, there are no fault elements for the physical
elements of the offence. Essentially this means that conduct alone is sufficient
to make the defendant culpable. However if strict liability applies, the defence
of mistake of fact is available where the person considered whether or not the
facts existed and was under a mistaken but reasonable belief about the
facts.
Provision for Infringement Notices
The issuing of an
infringement notice as an enforcement option for a breach of an offence
provision, where appropriate, as opposed to prosecution under the Environment
Protection Act 1997 or the Environment Protection Regulation
(previously in Schedule 5 to the 1997 regulations will now fall within the scope
of the Magistrates Court (Environment Protection) Infringement Notice
Regulation 2005. Both sets of regulations are to be made
concurrently.
Clause 1 - Name of regulation.
Provides that the
regulation is the Environment Protection Regulation 2005.
Clause 3 - Dictionary.
This clause explains that
the dictionary is part of this regulation.
Clause 4 -
Notes.
This clause explains that the notes are explanatory and not part
of this regulation.
Clause 5 - Offences against regulations -
application of criminal code etc
This clause inserts a provision into the
Environment Protection Regulation explaining that other legislation
applies in relation to offences under this regulation. It explains that the
Criminal Code 2002 applies to offences under this regulation.
Division 2.1 Application of Part 2
The notes explain the
exceptions to pollutants emitted in to the air.
Clause 6 - Application
of part 2 to tobacco smoking.
This clause explains that this part does
not apply to personal tobacco smoking.
Clause 7 - Meaning of national emission guidelines for div
2.2.
This clause explains the meaning of national emission
guidelines. The ACT uses the National Guidelines for Control of Emission of
Air Pollutants From New Stationary Sources 1985 published by the Australian
Environment Council and National Health and Medical Research Council. (Note
these NHRMC guidelines are not the most recent in use however they are the most
relevant for the ACT from a size and resource perspective.)
Division 2.3 Open- Air Fires.
Clause 9 - Open-air fires
prohibited except in certain circumstances.
This clause
explains that a person commits a strict liability offence if the person
lights, uses or maintains a fire in the open air. Clause (2) and (3) deal with
the exceptions contained in Schedule 1 part 1.2.
Clause 10 - Burning certain substances requires environmental
authorisation.
This clause explains the circumstances in which a person
commits an offence in relation to the burning of certain substances without an
environmental authorisation or in breach of that authorisation. Specific
exceptions occur for, destruction of animals and other property, or the
destruction of infected stock under the Animal Diseases Act 1993. For the
burning of waste on land that is in a rural area (non built up area) and the
waste has been generated by a person who is ordinarily resident of that land.
Waste burnt must be domestic waste, not industrial or agricultural waste such as
tyres or chemicals, (this would require an environmental
authorisation).
Clause 11 - Fire bans in bad
weather.
This clause sets out the parameters in which the Minister may
declare a fire ban and how that declaration must be made. It is a strict
liability offence for a person to contravene this declaration without reasonable
excuse (such as being in the middle of the bush and being without access to
radio or newspaper) The strict liability element of this offence has been
carefully considered, in this case lighting a fire in the open air in such
weather could lead to ongoing concerns for people with respiratory complaints
and they would need to be warned to stay inside.
Clause 12 - Indoor
fires prohibited unless harm minimised.
This clause deems that a person
commits a strict liability offence if the person lights uses or maintains a fire
in a place other than in an the open air, However there are 2 exceptions to this
(a) if the person takes all steps that are practicable and reasonable to prevent
any environmental harm caused by the emission of the pollutants into the air
from the fire. Or, (b) if the prevention is not reasonably practicable the
person takes all steps as in exception
Clause 13 - Pollutants
emitted from fires –exceptions for certain fires s 143 and 166(5).
This clause deems that a pollutant being emitted into the air from a fire is
not taken to cause environmental harm, unless burning the substance burned in
the fire, or lighting, using or maintaining of the fire is an offence against
any of the sections listed in the provision.
Division 2.6 Balloons
Clause 16 - Release of 20 or
more balloons prohibited.
This clause explains that a person who
releases 20 or more balloons at or about the same time and they are inflated
with a gas that causes them to rise is guilty of a strict liability offence. In
this case the prosecution does not have to prove the exact number of balloons
released (but evidence that is suggests that it was more than 20) and in the
absence of any contrary evidence, evidence that a balloon rose after being
released is evidence that the balloon was inflated with a gas that caused it to
rise.
Clause 17 - Balloons - exception if balloons not
outside.
This clause explains that a person does not commit an offence if
the balloons are released in a building or structure (for example, balloons
released inside a shopping centre as part of a promotion) and do not make their
way into the open air (outside).
Clause 18 - Balloons -
exception for hot air balloons.
This clause explains that section
16 does not apply, that is a person does not commit an offence if the balloons
are hot air balloons and they are recovered after landing.
Clause 19 - Balloons - exception for
science.
This clause explains that a person does not commit an
offence if the balloons are released for meteorological purposes or other
scientific purposes approved in writing by the Environment Protection Authority.
This approval is a notifiable instrument.
This clause explains that if the motor vehicle complies with the Road
Transport (Vehicle Registration) Act 1999 then any pollutant emitted from
the vehicle is taken not to cause environmental harm.
Note 1 lists the noise to which the Act does not apply.
Division
3.1 Interpretation
Clause 21 - Definitions for Part
3.
This clause defines the words that are used in this part.
(b) (i) either the noise is emitted from a unit plan and the effected
place is another unit on the unit plan or (b) (ii) the part of the parcel
from which the noise is emitted consists of a sublease of the territory lease in
relation to which a person has a right of occupation under a tenancy agreement
and the affected place is part of the parcel of land consisting of another
sublease of the territory lease. (b) (ii) would include for example tenants in
ACT Housing.
A person is must complain about the noise to an authorised
officer to be affected by the noise
This clause deals with the noise zone, which is linked with Schedule 2
(Schedule 2 is at the end of the regulation). Schedule 2 contains the
definitions for the noise zones as well as the noise zone (for example Zones A,
B, C etc) and for a place in the ACT on land mentioned in Schedule 2, table 2.1
Column 3 (for example such as land subject to the Territory plan) –the
noise zone mentioned in Column 2 for the land or for a place in New South Wales
on land mentioned in Schedule 2 table 2.1 column 4 the land mentioned in column
2 for the land.
Clause 24 - Meaning of noise
standard.
This clause is similar to the clause above dealing with noise
zones however this clause deals with noise standards and the relevant part of
Schedule 2 is part 2.2 column 3 or column 4.
Clause 25 - Noise taken to cause environmental harm Act s
5(a)
This clause states that for the purposes of section 5(a) of the
Environment Protection Act 1997. Noise emitted from a place in the
ACT is taken to cause environmental harm in an affected place if the noise level
is louder than the noise standard for the compliance point for the place where
the noise is emitted.
Clause 27 - Noise- exception for reducing environmental
harm
This clause explains that noise is not taken to cause environmental
harm in an affected place, if the noise is emitted in the course of preventing
minimising or remedying another environmental harm. Such noise could be the
sound of pumps in cleaning up a spill.
Clause 29 - Noise other exceptions.
This clause explains the
circumstances in which noise is not taken to cause environmental harm in an
affected place, that is, if the noise mentioned in Schedule 2 table 2.3 Column 2
and the conditions (if any) mentioned in Column 3 for the noise are met.
Clause 30 - Measurements to be taken at compliance
point.
This clause explains where the noise must be measured at
the compliance point for the place for the purpose of measuring noise emitted
from a place.
This clause explains that in measuring the noise the noise level must be
measured in L10T and all measurements must be taken in accordance with the
procedures set out in the noise control manual.
Clause 33 - Compliance point general rule for unleased
land.
This clause explains that the compliance point for unleased
land is any point as near as practicable to 5m from the source of the noise.
This section is subject to subsection 2(a) to (c) which deals with specific
exceptions to the rule.
Clause 34 - Compliance point -
exception for environmental protection agreement.
This clause
explains that if noise is emitted in the course of conducting an activity
for which an environmental protection agreement is in force and the agreement
states a compliance point then the stated point is the compliance point.
Clause 37 - Compliance point exception for leased land with boundary with
different noise zone.
This clause explains that if the noise is emitted
from leased land with a boundary that is also a noise zone boundary, and the
adjoining noise zone has a different noise standard, the compliance point is any
point as near as practicable to the boundary with the noise zone with the lowest
noise standard for the time when the noise is emitted.
If noise is emitted from a part of a parcel of land held under a territory lease consisting of a sublease of the territory lease the compliance point is any pint in any other part of the parcel of land consisting of another sublease of the territory lease or (b) any point as near as practicable to the boundary of the parcel of land.
Clause 39 - Offence to make noise louder than noise
standard
This clause explains that a person commits an offence if the
person makes the noise in the ACT, and the noise causes environmental harm in an
affected place. For example, using a power tool that emits a noise, and that
noise is higher than the noise permitted at that time. Schedule 2 at end of the
regulation lists the noise zones, standards and conditions that are relevant to
this provision.
A person also commits an offence under section 39(2)
where a person is an occupier of a place in the ACT and the noise is emitted
from a thing in the place and the noise causes environmental harm in an affected
place. Such as a noisy swimming pool pump, or an old air
conditioner.
Clause 40 - Sale and hiring of
things.
Clause 41 - Environmental values of waterways for Pt 4, Sch 3 and
Sch 4.
This clause explains the environmental values of a waterway to be
used.
Clause 42 - Certain pollutants taken to cause environmental
harm - Act s 5(b)
This clause explains that a pollutant mentioned in a
part in schedule 3 is taken to cause environmental harm if it enters the
waterway with the environmental value for that part. – that is, it is
deemed to have caused environmental harm for the purposes of section 5 of
the Environmental Protection Act1997.
Clause 43 - Ambient
environmental standards for waterways.
This clause deals with the ambient
standards for waterways-these standards are used for example in assessing
planning applications and are also levels that if breached can be deemed to have
caused environmental harm.
This clause explains the circumstances in which a person commits differing
strict liability offences the first by allowing a prohibited substance to enter
a waterway. Prohibited substances are listed in subclause 4 (a) to (h)
with (h) being any other pollutant. The list includes (a) paint for example
tipping paint down a sink or directly down a drain where it ends up in a
waterway. The second offence being if a person leaves a prohibited substance
unattended (for example- degreaser see (4)(d) and the prohibited substance is
within 10m of a drain or other entry to a waterway and exposed to rain or run
off and not securely contained in a watertight container.
Clause 45 - Building work waste must not enter stormwater
system or waterways.
This clause explains the circumstances in
which a person would commit this strict liability offence, that is if the person
places soil, sand, building material or waste from the building work in (a) the
storm water system or a waterway or (b) where it may enter the stormwater
system. or a waterway. Building work means building work for which a building
approval is required under Division 3.3 of the Building Act 2004.
If it is not the owner of the land but the person in charge who commits the
offence, as is often the case in building work then this is covered by clause
(2)
(2) a person who is in charge of building work (rather than being the
owner) also commits a strict liability offence for failing to keep that surface
stable.
Clause 48 - Washing vehicles etc - commercial
activity.
This clause explains the circumstances in which a
person who washes a vehicle or other thing in the course of, or incidental to,
carrying on a commercial activity, commits a strict liability offence if the
person allows the run off from the washing to enter the waterway (other thing =
such as what horse and cart / commercial dog washing) check
here.
Clause 49 - Washing vehicles etc- non- commercial
activity.
This clause explains this section applies to a person to
who washes a vehicle or other thing on premises where it is ordinarily kept and
otherwise than in the course of, or incidental to, carrying on a commercial
activity i.e. a non -commercial activity. A person commits a strict liability
offence if there is on the premises a grassed or gravelled area where the
vehicle or other thing can be washed and run off from the area does not flow
directly into a waterway or an area identified as a place where a vehicle or
other thing may be washed.
Clause 50 - Discharge of stormwater into
receiving waters.
This clause explains that a person commits a
strict liability offence of discharging stormwater into receiving waters (that
is ground water or a waterway) when they discharge stormwater from a sediment
retention dam or footings (explain what these are?) or another storm water
retention area and the stormwater flows into receiving waters and the suspended
solids concentration in the stormwater is higher than 60mg/L (how does this fit
with water standards see schedule 40?)
Clause 51 - Definitions for Part 6.
This part deals with
definitions of PCBs and PCB material.
Clause 52 PCBs taken to
cause environmental harm.
This clause explains that a PCB material and or
a thing containing a PCB material entering the environment is taken to cause
environmental harm. That is PCB’s are deemed to cause environmental harm
for the purposes of section 5 (b) of the Environment Protection Act 1997.
This could cover for example an old transformer or electrical components with
PCBs left at the landfill.
Clause 53 - Agvet chemical products taken to cause environmental harm.
Act s 5(b).
An Agvet chemical product is deemed to cause environmental
harm under section 5 (b) of the Environment Protection Act 1997 subject
to certain exceptions under section 54 of these regulations.
Clause 54
- Agvet chemical products- exception for registration or permit.
This
clause explains the circumstances in which an agvet chemical product is not
taken to cause environmental harm under clause 53(1) that is if the product is
registered under part 2, of the agvet Code, and is being used in accordance with
the conditions of registration. Clause 54 (2) states that if an active
constituent of the product is being used in accordance with a permit under part
7, of the agvet code, then again it is not taken to cause environmental harm, so
for example using Roundup in accordance with its labelling.
Section 60 - Definitions for Part 7.
This clause lists all the
definitions relevant for the interpretation of this part, (dealing with
controlled waste) for example, jurisdiction of origin (of the controlled waste)
producer (produces controlled waste), transporter (who transports controlled
waste)
.
Division 7. 2 - Movement of controlled waste between
States.
Section 57 - Application of Division 7.2
This
clause explains the circumstances in which this division does not apply.
It
does not apply to (a) – (g) in relation to (a) the movement of controlled
waste only between places within the ACT (Intra -territory waste is covered in
the Environment Protection Act 1997 Schedule 1 1.2 item 11 –an
environmental authorisation is required for the movement of regulated waste).
Section 58 - Consignment authorisation for controlled waste.
A
producer commits a strict liability offence if the producer moves controlled
waste into a jurisdiction of destination, say for example, in NSW and does not
have a consignment authorisation from an agency of the jurisdiction (usually the
jurisdiction’s EPA (environment protection authority)) or a facility
designated by the agency to move the controlled waste into the jurisdiction. A
producer also commits an offence if the producer consigns controlled waste to a
transporter and the transporter (for example, a haulage company) does not hold
an environmental authorisation for the consignment. .
Section 60 - Records of movement of controlled waste.
A
producer commits a strict liability offence if the producer does not keep a copy
of the information mentioned in section 59 (1) (b) for each consignment of
controlled waste, for at least one year, after the date of movement of the
controlled waste. A transporter commits a similar offence in relation to
information required under section 59(2)(b)(i) and (ii).
Section 61 -
Notification of receipt of controlled waste.
A producer commits a
strict liability offence if the producer moves controlled waste into a
jurisdiction of destination, and does not receive within 14 days after the day
when the controlled waste was due to arrive in the facility, the information
mentioned in the NEPM (national environment protection measure) from the agency.
Or the facility and does not tell the agency (usually the environment protection
agency/authority) in writing, that the producer has not received the
information.
Division 7.3 Controlled waste taken to cause
environmental harm
Section 62 - Controlled waste taken to cause
environmental harm – Act s 5 (b).
This clause explains that
controlled waste entering the environment is taken to cause environmental harm,
that is, it is deemed to cause environmental harm for the purposes of section 5
(b) of the Environment Protection Act 1997.
This clause lists (a) to (k) certain recognised entities - for example, a
recognised entity (b) Environment Protection Authority or (e) CSIRO or (2) an
entity as approved by the Minister - such an approval is a disallowable
instrument.
Part 9 - Miscellaneous
Section 67 -
Displacement of Legislation Act S 47(5) and (6)
This clause
explains that section 47(6) of the Legislation Act 2001 does not
apply to the instruments listed in this clause.
This section applies to an incorporated document or an amendment or
replacement of an incorporated document, the chief executive must ensure is made
available for inspection free of charge to the public on business days at
reasonable times (work hours) at the office of administrative unit administered
by chief executive.
Section 69- Notification of incorporated
document
The chief executive may prepare a written notice for the
incorporated document amendment or replacement that contains certain
information. The information required is listed in clauses (2) (a) to (d). The
written notice is a notifiable instrument.
This clause repeals the Environment Protection Regulation 1997 SL 1997-36
This Schedule lists the exceptions to the relevant provisions.
Part 2. 3 Noise conditions
Part 3.1 Domestic water supply quality (DOM 1/2/3)
Part 3.2 Water based
recreation swimming or boating (REC/1 or REC/2)
Part 3.3 Waterscape
(VIEW)
Part 3.4 Stock water supply (STOCK)
Part 3.5 Irrigation water
supply (IRRIG)
• Mountain streams AQUA/1)
• Lowland streams
(AQUA/2)
• Urban Lakes and Ponds (AQUA/3)
• Urban drains and
streams (AQUA 4)
• Urban Wetlands (AQUA/5)
• Mountain
Reservoirs (AQUA/6)
Part 4.4 Waterscape (VIEW)
Part 4.5 Stock water supply (STOCK)
Part 4.6
Irrigation water supply (IRRIG)
• Mountain streams AQUA/1
• Lowland streams
AQUA/2
• Urban streams and ponds AQUA/3
• Urban drains and
streams AQUA/4
• Urban wetlands AQUA/5
• Mountain reservoirs
AQUA/6
Dictionary