What's new in law - archive 2005

In 2003 the National Parks and Wildlife Service, the Environment Protection Authority, Resource NSW and the Botanic Gardens Trust combined to form the Department of Environment and Conservation. These archives relate to legislation administered by the Department of Environment and Conservation.

December 2005

  • Pesticides Amendment (Notification and Miscellaneous Matters) Regulation 2005 introduces new pesticide use notification requirements for public authorities and for multiple occupancy residential complexes. Public authorities will need to prepare and finalise pesticide use notification plans for outdoor public places they own or control. From 1 February 2007, pesticides must not be used in those outdoor public places unless public authorities have given notice in accordance with their plan. Also from February 2007, where pesticides are used in the common areas of multiple occupancy residential complexes (such as flats, townhouse complexes, certain caravan parks), the pest management technician and the person who arranges the pest treatment (for example, the strata manager) must notify residents of the proposed pest treatment and keep certain records. The amending regulation makes other minor changes which commence on gazettal, including a new offence where the holder of an aircraft (pesticide applicator) licence fails to provide records of the aerial application of pesticides on land to the land owner or occupier.
  • Water Management Amendment Act 2005 exempts certain cold water releases made under a Water Management Act 2000 approval from the offence of polluting waters under s 120 of the Protection of the Environment Operations Act 1997.
  • Brigalow and Nandewar Community Conservation Area Act 2005  - the remaining uncommenced provisions of this Act commence on 1 December 2005, giving effect to the land transfers in the Act. For further information, see under July 2005.
  • Further threatened species amendments commence on 1 December 2005. As a result of the commencement of the Native Vegetation Act 2003 ("NV Act") on 1 December 2005, the provisions in the Threatened Species Legislation Amendment Act 2004 ("the amending Act") relating to the NV Act also commenced on 1 December 2005. Those provisions modify defences to threatened species and protected fauna offences under the National Parks and Wildlife Act 1974. The "routine agricultural activities" defence has been replaced. In some cases, it will be a defence if the activity is authorised by a property vegetation plan approved under the NV Act and has the benefit of biodiversity certification. In addition, such activities cannot be the subject of a stop work order under the Threatened Species Conservation Act 1995. The clearing of native vegetation that has the benefit of biodiversity certification will not require the preparation of species impact statements or consultation between Ministers to obtain development consent for that clearing. Some amendments to the Fisheries Management Act 1994 made by the amending Act have not yet been commenced.
  • The Minister for the Environment has conferred biodiversity certification on the native vegetation reform package (not including private native forestry) under section 126C of the Threatened Species Conservation Act 1995, with effect from 1 December 2005.
  • Residue waste provisions commence on 1 December 2005. The Protection of the Environment Operations (Waste) Amendment (Residue Wastes) Regulation 2005 (gazetted 17.6.05) makes it an offence to apply, or to cause or permit the application of, certain residue waste to land that is used for the purposes of growing vegetation. A defence is available if the waste was lawfully sold as a soil improving agent or a trace element product within the meaning of the Fertilisers Act 1985. The amendments also allow exemptions to be granted in relation to activities involving residue wastes. The amendments operate from 1 December 2005 until 1 March 2006, at which time similar provisions in the Protection of the Environment Operations (Waste) Regulation 2005 come into force.  

November 2005

  • Protection of the Environment Operations Amendment Act 2005 implements recommendations arising from the five year statutory review of the Protection of the Environment Operations Act 1997 ("POEO Act"). The amendments will:
    (1) increase maximum penalties for offences under the POEO Act, including an increase from $1 million to $5 million for corporations that wilfully commit serious pollution offences;
    (2) introduce smoke abatement notices to regulate smoke pollution from residential premises;
    (3) revise existing waste offences and introduce new offences for land pollution and false or misleading information about waste;
    (4) allow green offset schemes and works to be implemented;
    (5) repeal the classified waters scheme in the Clean Waters Regulation 1972 and require the environmental values of water in the Australian and New Zealand Guidelines for Fresh and Marine Water Quality 2000, to be considered in licensing decisions and in issuing prevention notices;
    (6) expand the fit and proper person test applied in licensing decisions;
    (7) require the EPA to review licences every five years, instead of every three years;
    (8) expand the application of noise control notices and facilitate cost recovery;
    (9) provide that appeals lodged against certain decisions, notices and orders do not stay their operation unless the Land and Environment Court otherwise orders;
    (10) extend the ability of regulatory authorities to recover and waive certain costs and fees;
    (11) confer additional powers on authorised officers, including an express power to turn off unlawfully sounding noisy car or building alarms (a search warrant will still be required for residential premises);
    (12) remove the "no knowledge" defence for company directors;
    (13) revise evidentiary provisions, including those relating to a corporation's state of mind;
    (14) allow the EPA to accept court-enforceable voluntary undertakings;
    (15) expand alternative sentencing options;
    (16) apply the Chapter 8 enforcement provisions of the POEO Act to the Environmentally Hazardous Chemicals Act 1985
  • Protection of the Environment Operations (Hunter River Salinity Trading Scheme) Amendment Regulation 2005 makes minor amendments to the Protection of the Environment Operations (Hunter River Salinity Trading Scheme) Regulation 2002. Amongst other things, the amendments clarify that two nominees of the Hunter-Central Rivers Catchment Management Authority may be appointed to the Hunter River Salinity Trading Scheme Operations Committee.
  • National Parks and Wildlife Amendment (Jenolan Caves Reserves) Act 2005  transfers the care, control and management of the Jenolan, Wombeyan, Borenore and Abercrombie Karst Conservation Reserves from the Jenolan Caves Reserve Trust to the Director-General of DEC. Certain areas of the reserves will be managed by an administrator of the Trust for an interim period. A Karst Management Advisory Committee is established. The plan of management for the karst conservation reserves must include environmental performance standards and indicators, and leases or licences granted over those reserves will require compliance with those standards.
  • National Park Estate (Reservations) Act 2005 transfers certain State forests and Crown lands to the national park estate. The lands transferred include areas in parts of Monga State Forest, South Brooman State Forest, and Dampier State Forest, and include additions to Deua, Monga and Murramarang National Parks and Monga State Conservation Area.
  • Commencement of the 2004 threatened species amendments on 31 October 2005. The majority of the remaining uncommenced provisions of the Threatened Species Legislation Amendment Act 2004 ("the amending Act") commenced on 31.10.05. The amending Act further integrates natural resource management and land use planning systems with conservation laws. The newly commenced provisions allow the Minister to confer biodiversity certification on environmental planning instruments ("EPIs") and the native vegetation reform package. The certification of an EPI will allow certain developments and activities to be taken as not likely to significantly affect any threatened species, population or ecological community, or its habitat, for the purposes of Parts 4 and 5 of the Environmental Planning and Assessment Act 1979. Other changes made by the amending Act and commencing on 31.10.05 include: (1) the introduction of new procedures for the nomination and listing of threatened species, populations and ecological communities by the NSW Scientific Committee under the Threatened Species Conservation Act 1995 ("TSC Act"); (2) the introduction of the new categories of critically endangered ecological community and critically endangered species; (3) the Director-General will be required to prepare and adopt a Threatened Species Priorities Action Statement; (4) new Advisory Councils are to be established; (5) accredited consultants will be able to undertake surveys and assessments for various purposes; (6) new presumptions will apply in relation to threatened species and protected fauna offences under the National Parks and Wildlife Act 1974 ("NPW Act"), including that a person who causes or permits another person to commit an offence will also be taken to have committed the offence. The provisions of the amending Act which directly depend on the commencement of the Native Vegetation Act 2003 (which is not currently in force), and some of the amendments to the Fisheries Management Act 1994, have not yet been commenced, including the modification of the defences to threatened species and protected fauna offences in the NPW Act. The existing "routine agricultural activities" defence (contained in s 113A(3) TSC Act) to the threatened species offences has been continued in force until the new defences commence (Threatened Species Conservation (Savings and Transitional) Amendment Regulation 2005).
  • Commencement of the 2002 threatened species amendments on 31 October 2005. The remaining uncommenced provisions of the Threatened Species Conservation Amendment Act 2002 commenced on 31.10.05. The changes include: (1) new 7 part test setting out the factors to consider when determining whether a proposed action has a significant effect on threatened species, populations or ecological communities or their habitats (the factors to be considered include any current assessment guidelines); (2) additional information will be required in species impact statements ("SISs"); (3) the Director-General of DEC is to keep a register of applications for licences under the Threatened Species Conservation Act 1995 ("TSC Act"); and (4) new listing category of vulnerable ecological community. The new 7 part test replaces the old 8 part test in s 5A of the Environmental Planning and Assessment Act 1979 ("EP&A Act"), s 94 of the TSC Act and s 220ZZ of the Fisheries Management Act 1994 ("FM Act"). The test is used in determining whether a SIS must be prepared and considered when determining whether proposed actions may be carried out or whether a TSC Act or FM Act licence may be granted. Licences granted under the TSC Act authorise actions that are likely to result in the harm of threatened species, populations or ecological communities or their habitats, or critical habitats. The Threatened Species Conservation (Savings and Transitional) Amendment Regulation 2005 (gazetted 28.10.05; commences 31.10.05) provides that the old 8 part test is to continue to apply in relation to a TSC Act licence application made but not finally determined before 31 May. A similar provision applies for FM Act licences (Fisheries Management (General) Amendment (Transitional) Regulation 2005). Transitional arrangements relating to the application of the old 8 part test and new SIS requirements for the purposes of the EP&A Act have also been made (see Environmental Planning and Assessment Amendment (Species Impact Statement) Regulation 2005, gazetted 7.12.05).
  • National Parks and Wildlife Amendment (Threatened Species) Regulation 2005 allows penalty notices to be issued for threatened species offences under the National Parks and Wildlife Act 1974. The regulation also limits the scope of a new "routine farming practice activity" defence to threatened species and protected fauna offences. The new defence will not, however, be available until the Native Vegetation Act 2003 comes into force.
  • Theatened Species Conservation Amendment (Listing Criteria) Regulation 2005 sets out the criteria to be used by the NSW Scientific Committee when determining eligibility for listing as a threatened species, population or ecological community under the Threatened Species Conservation Act 1995 ("TSC Act"). The Threatened Species Conservation (Savings and Transitional) Amendment Regulation 2005 provides that, where the Scientific Committee made a preliminary listing determination before 31.10.05, but has not made the final determination, the final determination is to be made on the basis of the TSC Act and listing criteria in force when the final determination is made, and without any additional opportunity to make submissions about the preliminary determination. For more information on threatened species, see the threatened species website.

September 2005

  • National Parks and Wildlife Amendment (Jenolan Caves Reserves) Bill 2005 proposes to transfer the care, control and management of the Jenolan, Wombeyan, Borenore and Abercrombie Karst Conservation Reserves from the Jenolan Caves Reserve Trust to the Director-General of DEC. Certain areas of the reserves are to be managed by an administrator of the Trust for an interim period. A Karst Management Advisory Committee is to be established, and conditions relating to the measurement of environmental performance are to be included in certain leases and licences for the reserves.
  • Protection of the Environment Operations (Waste) Regulation 2005 replaces the Protection of the Environment Operations (Waste) Regulation 1996. Under the 2005 Regulation, the provisions of the 1996 Regulation remain in force until 1 March 2006. The 2005 Regulation proposes a new system for tracking waste, and changes some requirements relating to the waste levy contribution, waste storage and transport. The DEC is seeking public comment on the new provisions until 7 October 2005 and will make appropriate amendments to these provisions before they commence in 2006.
  • Protection of the Environment Operations (Clean Air) Amendment (Industrial and Commercial Activities and Plant) Regulation 2005 ("the amending regulation") repeals the Clean Air (Plant and Equipment) Regulation 1997 and transfers its provisions, with modifications, to the Protection of the Environment Operations (Clean Air) Regulation 2002. Air pollutant emission limits will now vary depending on the type of activity being carried out and the date on which the relevant plant or activity commenced operation. More stringent air pollutant limits have been introduced for future industry, emission units that are altered in certain circumstances and emission units that are replaced within the greater metropolitan area. Older, less stringent limits are to be phased out. Some additional emission limits will apply when non-standard fuels are used and new operational requirements have been added for certain afterburners, flares, vapour recovery units and other treatment plant. The Protection of the Environment Operations (Penalty Notices) Amendment (Clean Air) Regulation 2005 enables penalty notices to be issued for offences against these provisions. The Approved Methods for the Modelling and Assessment of Air Pollutants in NSW and the Approved Methods for the Sampling and Analysis of Air Pollutants in NSW  have also been updated to support the amending regulation and can be found at www.environment.nsw.gov.au/air/quality.htm.

August 2005

  • National Parks and Wildlife Amendment Regulation 2005 makes a number of minor changes, including: (1) changing penalty notice fines for some parking offences in parks; (2) creating a new offence of parking a vehicle in a park so as to obstruct use of roads, tracks or trails by other vehicles, to endanger other park users or to damage vegetation; (3) creating a new offence of carrying, using or possessing ammunition in a park; (4) clarifying that offences relating to hunting dog equipment apply to roads traversing parks; and (5) clarifying that it is an offence to leave a fire unattended before the fire is thoroughly extinguished. Changes have also been made to when deadfalls of timber may be collected in parks. The existing exclusions from some offences under the National Parks and Wildlife Regulation 2002 for conduct necessary for carrying out development in accordance with a consent or approval under the Environmental Planning and Assessment Act 1979 are now limited to ski resort areas in Kosciuszko National Park and certain development consents granted to Snowy Hydro Limited.

July 2005

  • National Parks and Wildlife (Adjustment of Areas) Act 2005 For further details on this Act, see under June 2005.
  • National Parks and Wildlife (Further Adjustment of Areas) Act 2005 revokes the reservation under the National Parks and Wildlife Act 1974 of areas of land within Illawarra Escarpment State Conservation Area, Jerrawangala National Park and Morton National Park. The adjustment will enable the upgrade of infrastructure in those areas.
  • Statute Law (Miscellaneous Provisions) Act 2005 makes a number of minor changes to legislation administered by the DEC, including: (1) requiring penalties recovered under the Threatened Species Conservation Act 1995 ("TSC Act") and regulation to be paid into the National Parks and Wildlife Fund; (2) providing that investigative notices issued under the National Parks and Wildlife Act 1974 will continue to have effect until complied with, even if the due date for compliance has expired; (3) allowing offences under the TSC Act to be prescribed as penalty notice offences; and (4) minor amendments to uncommenced provisions of the Threatened Species Conservation Amendment Act 2002 and Threatened Species Legislation Amendment Act 2004 relating to the test of significant effect on theatened species, populations or ecological communities, and to the procedures of the Scientific Community.
  • Brigalow and Nandewar Community Conservation Area Act 2005 creates a Community Conservation Area ("CCA") in the Brigalow and Nandewar areas of central-northern NSW. The CCA is divided into the following four zones: (1) conservation and recreation zone, containing land to be reserved as national park; (2) conservation and Aboriginal culture zone, containing land to be reserved as Aboriginal area; (3) conservation, recreation and mineral extraction zone, containing land to be reserved as state conservation area; (4) forestry, recreation and mineral extraction zone, consisting of State forest. Timber can only be commercially extracted from zone 4. The Act establishes the Brigalow and Nandewar Community Conservation Council whose functions include: (1) developing a Community Conservation Area Agreement, relating to the management of the CCA; and (2) implementing government policy objectives for the CCA. Community Conservation Advisory Committees are to be established to advise the Council on the Agreement as it applies to their respective areas. The Waste Fund is to be abolished and the funds are to be transferred to the Environmental Trust Fund, which can be used for various environmental initiatives, including waste programs. The funds can also be used for forestry restructuring and assistance programs in the Brigalow, Nandewar and adjacent areas.

June 2005

  • A consultation draft of the Protection of the Environment Operations Amendment Bill 2005 is currently available for public comment until 22 July 2005. The proposed amendments are an outcome of the review of the Protection of the Environment Operations Act 1997 in 2003.
  • Protection of the Environment Operations (Waste) Amendment (Residue Wastes) Regulation 2005 makes it an offence to apply, or to cause or permit the application of, certain residue waste to land that is used for the purpose of growing vegetation. It will be a defence if the waste was lawfully sold as a soil improving agent or a trace element product within the meaning of the Fertilisers Act 1985. The regulation also provides for the granting of exemptions in relation to activities involving residue wastes. 
  • National Parks and Wildlife (Adjustment of Areas) Act 2005 makes minor adjustments to the boundaries of Botany Bay National Park, Kosciuszko National Park, Lake Innes Nature Reserve and South East Forest National Park. The Act amends the National Park Estate (Southern Region Reservations) Act 2000 to extend the deadlines for public road boundary adjustments and for declarations concerning the status of access roads within former State forests and Crown land, which were transferred to the national park estate by that Act.
  • Brigalow and Nandewar Community Conservation Area Bill 2005 proposes to create a Community Conservation Area ("CCA") in the Brigalow and Nandewar areas of central-northern NSW. The CCA will be divided into the following four zones: (1) conservation and recreation zone, containing land to be reserved as national park; (2) conservation and Aboriginal culture zone, containing land to be reserved as Aboriginal area; (3) conservation, recreation and mineral extraction zone, containing land to be reserved as state conservation area; (4) forestry, recreation and mineral extraction zone, consisting of State forest. Timber can only be commercially extracted from zone 4. The Bill proposes to establish the Brigalow and Nandewar Community Conservation Council whose functions will include: (1) developing a Community Conservation Area Agreement, relating to the management of the CCA; and (2) implementing government policy objectives for the CCA. Community Conservation Advisory Committees will also be established to advise the Council on the Agreement as it applies to their respective areas. The Waste Fund is to be abolished and the funds are to be transferred to the Environmental Trust Fund, which can be used for various environmental initiatives, including waste programs. The funds can also be used for forestry restructuring and assistance programs in the Brigalow, Nandewar and adjacent areas.
  • National Park Estate (Reservations) Bill 2005 proposes to transfer certain State forests and Crown lands to the national park estate. The lands to be transferred include areas in parts of Monga State Forest, South Brooman State Forest , and Dampier State Forest, and include additions to Deua, Monga and Murramarang National Parks and Monga State Conservation Area.

March 2005

  • Protection of the Environment Operations (General) Amendment (Luna Park) Regulation 2005 exempts certain activities carried out at the Luna Park site, under particular development consents, from the operation of provisions of the Protection of the Environment Operations Act 1997 that regulate noise emissions. The exemption only applies if the activities are carried out in accordance with the conditions of the relevant development consents.
  • National Parks and Wildlife (Adjustment of Areas) Bill 2005 proposes to make minor adjustments to the boundaries of Botany Bay National Park, Kosciuszko National Park, Lake Innes Nature Reserve and South East Forest National Park. The Bill also proposes to amend the National Park Estate (Southern Region Reservations) Act 2000 to extend the deadlines for public road boundary adjustments and for declarations concerning the status of access roads within former State forests and Crown land, which were transferred to the national park estate by that Act.
  • Protection of the Environment Operations (Noise Control) Amendment (Motor Cycle Noise Control Equipment) Regulation 2004 amended the Protection of the Environment Operations (Noise Control) Regulation 2000 to give effect to a number of requirements for motor cycles in respect of labelling of noise control equipment, permitted noise levels and testing of noise levels.
  • Protection of the Environment Operations (Control of Burning) Amendment Regulation 2004 makes it an offence for a person to burn anything in the open, or in an incinerator, in the Broken Hill local government area except in accordance with an EPA approval.
  • Statute Law (Miscellaneous Provisions) Act (No 2) 2004 amends the National Parks and Wildlife Act 1974 and the Nature Conservation Trust Act 2001 to provide that when the Minister or Trust notifies the Registrar-General that a conservation agreement or Trust agreement, respectively, has been entered into, varied or terminated, the Registrar-General is to make an entry: (1) in the Register under the Real Property Act 1900 if the agreement relates to Torrens title land, or (2) in the General Register of Deeds kept under the Conveyancing Act 1919 and, if appropriate, any official record relating to Crown land, if the agreement relates to old system title land.
  • Threatened Species Legislation Amendment Act 2004 ("the amending Act") further integrates natural resource management and land use planning systems with conservation laws. The amendments will allow the Minister to confer biodiversity certification on the native vegetation reform package. This will allow activities authorised by a property vegetation plan to be carried out without a separate threatened species licence and will operate as a defence to certain offences under the National Parks and Wildlife Act 1979 ("the NPW Act"). The amending Act will also allow the Minister to confer biodiversity certification on an environmental planning instrument if satisfied that step will lead to the overall improvement or maintenance of biodiversity values. This will allow certain developments and activities to be taken as not likely to significantly affect any threatened species, population or ecological community, or its habitat for the purposes of Parts 4 and 5 of the Environmental Planning and Assessment Act 1979. Other changes made by the amending Act include: (1) the Director-General will be required to prepare and adopt a Threatened Species Priorities Action Statement; (2) new Advisory Councils are to be established; (3) the "routine agricultural activities" exemption for threatened species licences is to be replaced; (4) accredited consultants will be able to undertake surveys and assessments for various purposes; (5) the introduction of the new categories of critically endangered ecological community and critically endangered species; (6) the introduction of new procedures for the nomination and listing of threatened species by the Scientific Commitee; (7) the modification of defences to threatened species offences in the NPW Act, and presumptions in relation to those offences; and (8) the investigative powers of authorised officers under the Protection of the Environment Operations Act 1997 will be conferred on authorised officers under the NPW Act for the purposes of the NPW Act, Threatened Species Conservation Act 1995, Wilderness Act 1987 and Marine Parks Act 1997. The amending Act will also make parallel changes to the Fisheries Management Act 1994
  • Marine Parks Amendment (Lord Howe Island and Other Amendments) Regulation 2004 amends the Marine Parks Regulation 1999 to: (1) establish a zoning plan for the Lord Howe Island Marine Park (which regulates the uses permitted within each zone); (2) provide for additional powers for marine park rangers; (3) provide for increased penalties for offences; (4) create additional offences; (5) set out the process for the issue, variation, suspension and termination of permits; and (6) make other minor amendments.
  • Mutual Recognition (New South Wales) Temporary Exemptions Regulation 2004 and Trans-Tasman Mutual Recognition (New South Wales) Temporary Exemptions Regulation 2004 declares the petrol volatility requirements in Part 3 Division 7 of the Protection of the Environment Operations (Clean Air) Regulation 2002 to be exempt from the operation of the mutual recognition schemes for goods. Those schemes generally provide that goods that may lawfully be sold in other Australian jurisdictions, or New Zealand, may also be sold in NSW without having to comply with certain requirements imposed by NSW laws, including requirements that goods comply with prescribed standards
Page last updated: 16 November 2015