Australia: Environment & Planning Update for New South Wales - May 2014

There have been a number of recent legislative amendments in the environment and planning law sphere. In particular, there have been changes to the laws regarding prosecutions for serious environmental offences, illegal waste disposal, exempt and complying developments, and the regulation of swimming pools. A summary of these legislative amendments is provided below.

We note that there have been no further developments with the Planning Bill 2013 (considered in our previous bulletins in May 2013 and December 2013.

Protection of the Environment Operations Act 1997 (POEO Act)

Protection of the Environment Operations Amendment (Prosecutions) Bill 2013 (POEO Prosecutions Bill)

The POEO Prosecutions Bill amends the POEO Act by reallocating the power of the Environmental Protection Authority (EPA) to prosecute serious environmental offences (Tier 1 offences under Part 5.2 of the POEO Act) to the Director of Public Prosecutions (DPP) and the Attorney General.

The changes introduced by the POEO Prosecutions Bill:

  • require the EPA to inform the DPP if there is a prima facie case in relation to a Tier 1 offence that arises during the course of the EPA's investigations. If the EPA cannot determine whether there is a prima facie case against a person in relation to a serious environmental offence, the EPA must inform the DPP of this fact
  • give the DPP and the Attorney General the power to commence proceedings for a Tier 1 offence, and
  • amend Division 2 of Part 8.2 of the POEO Act, so that it now provides that the EPA or any other appropriate regulatory authority (ARA) may only institute proceedings for Tier 2 and Tier 3 offences.

The POEO Prosecutions Bill came before the Legislative Assembly on 27 February 2014. The second reading debate continued and was adjourned. We will monitor the progress of the POEO Prosecutions Bill and provide updates on further developments.

Protection of the Environment Operations Amendment (Illegal Waste Disposal) Act 2013 (POEO Illegal Waste Act)

The POEO Illegal Waste Act commenced on 1 October 2013. The purpose of the amendment is to expand the scope of offences under the POEO Act for:

  • the use of a place as a waste facility without lawful authority, and
  • the supply of false and misleading information about waste.

The amendments:

  • Create a new offence of knowingly supplying information that is false and misleading in a material respect. The maximum penalties for this offence are:
    • $500,000 for a corporation, and
    • $240,000 or 18 months imprisonment, or both, for an individual.
  • Insert a new provision about repeat waste offenders. A person will commit an offence if they:
    • have been convicted of a "waste offence", and
    • commit another "waste offence" within five years of being convicted of the first offence.

    "Waste offences" include:

    • water pollution (where the waters are polluted by waste)
    • land pollution
    • unlawful transporting or depositing of waste, and
    • use of a place as a waste facility without lawful authority.

    The maximum penalty for a repeat waste offence is the maximum monetary penalty under the POEO Act for the commission of the waste offence by an individual, or two years imprisonment, or both.

    • Inserts Part 7.6A, which deals with the seizure of motor vehicles or vessels used to commit repeat waste offences. This provides that the EPA may seize a motor vehicle that it has a reason to believe has been used to commit repeat waste offences. The Land and Environment Court may order the forfeiture of such motor vehicle or vessel if the Court convicts the person of a repeat waste offender offence.

Exempt and complying development

State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Commercial and Industrial Development and Other Matters) (Codes SEPP Amendment)

The Codes SEPP Amendment commenced on 22 February 2014. It expands existing categories of exempt and complying development in the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. It also introduces new categories of complying and exempt development codes.

The Codes SEPP Amendment also repeals a number of State Environmental Planning Policies (SEPPs) and consolidates many of their provisions into the Codes SEPP. The repealed SEPPs are:

  • State Environmental Planning Policy No 4 – Development Without Consent and Miscellaneous Exempt and Complying Development
  • State Environmental Planning Policy No 6 – Number of Storeys in a Building
  • State Environmental Planning Policy No 22 – Shops and Commercial Premises, and
  • State Environmental Planning Policy No 60 – Exempt and Complying Development.

The new category of complying development is found in the Commercial and Industrial Alterations Code.

Amendments have also been made to existing complying development controls, including for dwelling houses and ancillary development, and additional types of work on particular forms of residential complying development (such as residential flat buildings).

The new categories of exempt development are:

  • advertising and signage, and
  • temporary uses and structures.

Amendments have also been made to existing exempt development codes, including for outdoor dining on footpaths, charity bins, farm buildings and sculptures and artworks in specific locations.

Environmental Planning and Assessment Amendment (Complying Development and Fire Safety) Regulation 2013 (EPA Fire Safety Regulation)

The EPA Fire Safety Regulation commenced on 22 February 2014, and supports the amendments made by the Codes SEPP Amendment. The EPA Fire Safety Regulation amends the Environmental Planning and Assessment Regulation 2000.

The EPA Fire Safety Regulation requires, among other matters:

  • a certifying authority to give notice, in certain circumstances, to the occupier of each dwelling that is located within 20 metres of a development before determining an application for a complying development certificate (CDC)
  • a CDC to be issued subject to a condition requiring payment of a contribution/levy under s 94 or s 94A of the EPA Act, if the relevant contributions plan requires payment of a contribution/levy for that development
  • a CDC that is issued subject to a condition that a contribution/levy be paid under s 94 or s 94A of the EPA Act, to be issued subject to a condition as to when the contribution/levy is to be paid
  • the payment of a security to a Council as a condition of a CDC in certain circumstances
  • that a Principal Certifying Authority (PCA) be satisfied that preconditions to which a CDC is subject to have been met before the work commences
  • an application for a CDC to contain particular information about the contamination status of the relevant land, and
  • applications for certain complying developments to be accompanied by a report on fire safety from an independent accredited certifier (in most circumstances), and for any such report to be provided to the relevant Council where the Council is not the PCA.

Swimming pools

Swimming Pools Amendment Act 2012 (SP Amendment Act)

The SP Amendment Act commenced on 29 April 2014. It provides that, where a contract relates to the sale of land on which there is a swimming pool, the following documents are prescribed documents for the purposes of the Conveyancing (Sale of Land) Regulation 2010:

  • a valid certificate of compliance issued under the Swimming Pools Act 1992 (SP Act), and
  • an occupation certificate within the meaning of the SP Act, and evidence that the swimming pool is registered under Part 3A of the SP Act.

The SP Amendment Act also inserts a new clause into the Standard Form Agreement under the Residential Tenancies Regulation 2010. This requires that, where there is a swimming pool on the relevant premises, the landlord must agree to ensure that at the time the residential tenancy agreement is entered into:

  • the swimming pool on the premises is registered under the SP Act and has a valid certificate of compliance or relevant occupation certificate under the SP Act, and
  • a copy of the valid certificate of compliance or relevant occupation certificate is provided to the tenant.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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