Pollution Control Amendment Bill

About this Item
SpeakersAllan Ms Pam
BusinessBill, First Reading, Second Reading


Bill introduced and read a first time.
Second Reading

Ms ALLAN (Blacktown - Minister for the Environment) [10.31]: I move:
      That this bill be now read a second time.

The Government is committed to protecting, restoring and enhancing the quality of the environment while having regard to the need to maintain ecologically sustainable development. This commitment can only be fulfilled if an integrated, holistic approach is taken to regulating pollution arising from activities licensed by the Environment Protection Authority. The purpose of the Pollution Control Amendment Bill is to clarify the powers of the EPA in this regard. The bill has two main purposes. The first is to amend the Pollution Control Act to clarify the power of the EPA to attach cross-media conditions to licences. The second is to validate all such conditions attached to existing licences issued by the EPA. Generally, under the Pollution Control Act licences are issued in three circumstances: firstly, where premises or equipment are listed in the schedule to the Clean Air Act; secondly, where premises are listed in the schedule
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to the Noise Control Act; and thirdly, where a person is conducting an activity that pollutes waters contrary to the Clean Waters Act. The need to obtain a licence, therefore, arises due to requirements set out in an Act relating specifically to air, water or noise pollution.

When a licence is required under either the Clear Air Act, the Clear Waters Act or the Noise Control Act, it has been the long established practice of the EPA and its predecessor, the State Pollution Control Commission, to impose conditions on that licence regulating all pollution associated with the relevant activity. For example, if a licence is required under the Clean Air Act, it has been the practice of the EPA to impose conditions which control not only air pollution, but also, where appropriate, the impact of noise pollution and water pollution. Conditions of this sort, which control forms of pollution other than that for which the licence was required, are commonly referred to as cross-media conditions. It is estimated that up to 20 per cent of EPA licences have cross-media conditions. This integrated, holistic approach to the regulation of polluting activities is vital to the proper protection of the environment. The approach is based on the provisions of section 17D(4) of the Pollution Control Act, which provides that when exercising its licensing powers the EPA shall have regard to the pollution being or likely to be caused. The term "pollution" is defined to include air and water pollution, offensive noise and pollution of any other kind affecting any part of the environment.

In late August 1996, in the case of the Environment Protection Authority v Cleary Brothers (Bombo) Pty Limited, the Land and Environment Court held that, despite the wording of section 17D(4), cross-media conditions in licences issued by the EPA are invalid. The effect of the court's decision is that when imposing licence conditions the EPA is only able to consider the kind of pollution for which the licence is required. For example, if a licence is required under the Clean Air Act, the licence conditions will only be able to control air pollution. The Government considers that the effect of the court's decision needs to be overcome. If it is not, the ability of the EPA to properly regulate polluting activities will be severely compromised.

The bill therefore replaces section 17D(4) of the Pollution Control Act with section 17BA. Subsection (2) of section 17BA provides that in exercising its functions relating to licences the EPA must take into consideration pollution of all kinds caused or likely to be caused by the activity conducted or to be conducted by the applicant or licensee. Subsection (3) of section 17BA explicitly empowers the EPA to impose conditions on a licence regulating all such pollution. The effect of the court's decision in the Cleary Brothers case is that the cross-media conditions on up to 20 per cent of EPA licences are invalid. This would create a major gap in the control of significant sources of environmental harm. Clause 4 of the bill therefore validates all cross-media conditions attached to existing licences, with the exception of the licence the subject of the decision in the Cleary Brothers case. The bill furthers the Government's strong commitment to ecologically sustainable development and the protection, restoration and enhancement of the environment of New South Wales. I commend the bill to the House.

Debate adjourned on motion by Mr Hazzard.