Pollution

Contributed by DavidMorris and current to 1 May 2016

Pollution laws

The laws in the NT relating to the regulation of pollution are contained in a range of Acts, regulations and by-laws (mostly at the Territory rather than the Commonwealth level) and in the common law. It should be noted that a number of the pollution laws in the NT are currently being reviewed. The information provided is correct at the time of writing but readers are advised to always check for the most recent amendments of the legislation.

Overview of pollution regulation laws

The main regulatory controls are contained in the following legislation:

• The Waste Management and Pollution Control Act 1988 (NT) (WMPCA) is the principal Act that regulates most industry and individuals that conduct activities likely to cause pollution. This Act is covered in detail below
• Public and Environmental Health Act 2011 (NT) and regulations: this Act provides a framework for the appointment of a Chief Health Officer and the making of regulations in relation to a wide variety of matters specified in the Act
• Local Government by-laws: by-laws made under the Local Government Act, such as the Darwin City Council By-laws, deal with a wide range of polluting activities, including garbage, litter and noise.

The NT EPA's environmental management team is responsible for the promotion of waste reliance, mitigation, re-use and recycling.

Pollution Response Line

The NT Environment Protection Authority operates a 24-hour Pollution Response Line, which can be used by the public to inform the department of any incidents that may constitute pollution. If you hear, see or smell any form of suspected pollution, please call the Pollution Hotline: 1800 064 567.

Pollution may include, but is not limited to, the following:

• Agricultural and veterinary waste
• Asbestos
• Illegal dumping
• Noise (e.g. antisocial behaviour, barking dogs, birds, domestic arguments, construction noise)
• Sewage.

In addition, there are a number of alternative available avenues to take should you have concerns regarding pollution in your area, depending on the nature of the complaint. The Northern Territory Environmental Protection Authority (NT EPA) has more information regarding agencies that respond to pollution and waste concerns such as those detailed above. Please visit their website for more information: https://ntepa.nt.gov.au/waste-pollution/hotline

Waste Management and Pollution Control Act

Objectives of the WMPCA

The WMPCA objectives set out at s 5 include:

• protecting and enhancing the quality of the NT environment
• reducing and preventing pollution
• increase the re-use and recycling of waste
• effectively manage waste disposal
• encouraging ecologically sustainable development
• facilitate the implementation of national environmental protection measures canvassed by the National Environment Protection Council (Northern Territory) Act.

As detailed above, one of the key objectives of the Act is to encourage ecologically sustainable development. Holistically, the WMPCA is more focussed on pollution and waste resulting from operations rather than promoting environmentally friendly practices. This is one of the key complaints that has been discussed in the recent review of the WMPCA. For more information regarding the review of the Act, visit the NT EPA website.

Key definitions

Section 4 of the WMPCA assists in defining the objectives of the Act, by explaining key terms. Referring to this section will assist in addressing any ambiguity in interpretation of the WMPCA. Pollution and waste are defined broadly in s 4, and "harm" is categorised in a three tier category system: environmental harm, material environmental harm and serious environmental harm. For the purposes of the Act, the following key terms are defined as follows:

Environment means land, air, water, organisms and ecosystems and includes:

• The well-being of humans
• The structures made or modified by humans
• The amenity values of an area, and
• Economic, cultural and social conditions.

Environmental harm means:

• Any harm to or adverse effect on the environment; or
• Any potential harm (including the risk of harm and future harm) to or potential adverse effect on the environment of any degree or duration and includes environmental nuisance.

Material environmental harm means environmental harm that:

• Is not trivial or negligible in nature
• Consists of an environmental nuisance of a high impact or on a wide scale
• Results, or is likely to result, in more than $50,000 or the prescribed amount (whichever is greater) being spent in taking appropriate action to prevent or minimise the environmental harm or rehabilitate the environment or
• Results in action or potential loss or damage to the value of not more than $50,000 or the prescribed amount (whichever is greater).

Serious environmental harm means environmental harm that is more serious than material environmental harm and includes environmental harm that:

• Is irreversible or otherwise of a high impact or on a wide scale
• Damages an aspect of the environment that is of a high conservation value, high cultural value or high community value or is of special significance
• Results or is likely to result in more than $50,000 or the prescribed amount (whichever is greater) being spent in taking appropriate action to prevent or minimise the environmental harm or rehabilitate the environment, or
• Results in actual or potential loss or damage to the value of more than $50,000 or the prescribed amount (whichever is greater).

Environmental nuisance means:

• An adverse effect on the amenity of an area that:
  • Is caused by noise, smoke, dust, fumes or odour and
  • Unreasonably interferes with or is likely to unreasonably interfere with the enjoyment of the area by persons who occupy a place within an area or are otherwise lawfully in the area; or
• An unsightly or offensive condition caused by contaminants or waste.

Environmental duty

Section 12 of the WMPCA requires that people who are engaging in activity that is causing or is likely to cause pollution resulting in environmental harm must take all measures that are reasonable and practicable to prevent and reduce the amount of the waste. Failure to do so may result in a pollution abatement notice being issued to him or her.

The WMPCA does not apply to mining sites, petroleum operations and pipeline operations but similar provisions can be found in relevant governing acts. Please refer to Development and Planning for more information regarding mining.

Environmental protection, controls and licenses

Under Part 4 of the WMPCA, it may be possible to obtain an environmental protection approval to conduct certain activities that are otherwise prohibited by the Act. It should be noted that conducting these activities could result in an environmental offence without a valid environmental protection approval or license (or acting outside the specifications of approvals or licenses).

An environmental protection approval or a license in situations such as:

• Where an activity conducted could create the modification or alteration where there is likely to be significant increases or alterations of waste generated, stored, treated or disposed of; or
• A significant increase in pollution resulting in environmental harm or the risk of pollution resulting in environmental harm.

An application for an exemption in the form of an environmental protection approval, an environmental protection license or a best practice licence must be made under s 31 of the WMPCA (see WMPCA s 14).

In considering an application, the NT EPA will consult various relevant agencies and bodies, as it sees fit. In making its assessment of an application, it will have regard to a number of factors, including (see WMPCA s 32):

• All objectives of the Act, as well as relevant environmental protection objectives
• Compliance and performance agreements
• The nature of the premises and its surrounding land use and environment
• Whether the Environmental Assessment Act applies, and whether any corresponding action has been taken (such as an environmental impact statement), and
• Any environmental audits that have taken place.

Failure to comply

A failure to comply with the WMPCA in the following ways may result in an offence (see WMPCA s 38):

• Intentionally or unintentionally polluting the environment where it is known, or ought reasonably to be known, that serious environmental harm or material environmental harm may result from the pollution and serious environmental or material environmental harm results
• Causing an environmental nuisance, and
• Intentionally or unintentionally causing or permitting a contaminant or waste to be stored in a way that could be reasonably regarded as potentially causing environmental harm. Penalties vary from an environmental offence level 1 to an environmental offence level 4, depending on the nature of the offence. Please refer to s 83 of the WMPCA for more information. The penalties for these offences are provided for in the Environmental Offences and Penalties Act (NT).

Pollution which causes environmental damage or injury in land (as opposed to the public at large) may also give rise to civil claims for private nuisance or trespass at common law. If pollution is caused by a person's negligence, it may give rise to a civil claim under the common law of negligence.

Defences

A person or organisation that is charged with an offence on any level has three potential defences defined by the statute (see WMPCA s 84): Â

• It is a defence if it is proved that the alleged offence did not result from a failure to exercise reasonable care
• It is a defence if an offence relates to a particular contamination or waste if it is proved that the defendant complied with the following in relation to a fixed maximum allowable level for the particular contamination or waste:
• A provision of an environment protection objective;
• A condition of an environment protection approval or a licence.

Reporting a pollution incident

Under s 14 of the WPMCA, the NT EPA must be notified of incidents that cause or threaten to cause pollution. A failure to do so may result in an environmental offence. For example, where a person accidentally causes the release of fumes into the atmosphere, the person must notify the NT EPA.

Notifications must be made within 24 hours of first becoming aware of the incident. An incident includes accidents, emergencies or malfunctions and deliberative actions. Where an incident causes or is threatening to cause pollution resulting in environmental harm, it must be reported.

When making a report, ensure that the following information is specified:

• The incident causing or threatening to cause pollution
• The place where the incident occurred
• The date and time of the incident
• How the pollution has occurred, is occurring or may occur
• The attempts made to prevent, reduce, control, rectify or clean up the pollution or resultant environment environmental harm caused or threatening to be caused by the incident, and
• The identity of the person notifying. A failure to report or an inadequacy of reporting is unlikely to lead to an immediate offence. However, it may result in a pollution abatement notice, which will be issued by the NT EPA. A pollution abatement notice may require a person, within a specified time frame, to comply with general environmental duties and potentially a specific provision of the Act, prevent further pollution or take remedial action to return the polluted area to the position it was in before polluting occurred (see WPMCA s 79). A failure to comply with a pollution abatement notice may result in an environmental offence being issued against an employee and their agents.

Environmental Protection Orders

The WMPCA additionally provides for the making of Environmental Protection Objectives (EPO) in relation to defined areas, which include (see WMPCA s 16):

• Air, water and soil quality
• Soil quality insofar as it relates to the assessment, management and clean up of polluted soil
• A type or class of waste, industry or activity
• Waste management
• A technology or process, and
• A pollution control practice.

The purpose of EPOs is to ensure the ongoing quality of the environment, minimisation of pollution and environmental harm and effective waste management implementation (see WMPCA s 15). In doing an EPO is able to define goals and guidelines and create a framework for implementing management plans as per the objectives stated above. Contravening an EPO is an offence and could result in legal action. EPOs will be published in the Gazette by the Minister,

The other principal function of the WMPCA is the regulation of waste facilities. Approvals and licences for the disposal and treatment of waste and listed wastes are granted under Part 5 of the WMPCA.

Environmental audits

The WMPCA allows for the administration of environmental audits, as per s 47 of the WMPCA. The NT EPA may require an environmental audit program to be carried out (WMPCA s 48), or the Court may order an audit (WMPCA s 49). Similarly, a voluntary environmental audit may take place. Environmental auditing is a key feature of the Act that is necessary to ensure that the Act is meeting its objectives.

Waste management and pollution control register

Under s 9 of the WMPCA, the NT EPA is required to maintain a register with all of the information specified by Schedule 1 of the Act, as well as any additional information as required by alternative provisions. At the time of writing, Schedule 1 requires the register to include the following information:

• Licences or environmental protection approvals
• Plans for environmental management provided to the NT EPA in accordance with a condition of an environmental protection approval or a licence granted under this Act
• Compliance plans
• Pollution abatement notices, and
• Incidences of which the NT EPA is notified under s 14.

Public Health Legislation and Pollution

Pollution of waste may also be considered to be a risk to public health or environmental law under the Public and Environmental Health Act 2011 (NT). Under s 25 of the Act, a public health nuisance is anything that:

• Puts at risk or damages public health, or
• Has put at risk or damaged public health, or
• Is likely to put at risk or damage public health (see Public and Environmental Health Act 2011 (NT), s 25(1)).

A public health nuisance may relate to the following (see Public and Environmental Health Act 2011 (NT), s 25(2)):

• Places
• Water or land covered by water
• An animal, whether dead or alive
• Refuse
• Dust, fumes, vapour or any other emission.

Engaging in an activity that causes a public health nuisance intentionally or recklessly carries a maximum penalty of 400 penalty units, or imprisonment for 2 years (see Public and Environmental Health Act 2011 (NT), s 26(1)). Additionally, it is an offence for a person to occupy a place in which a public health nuisance exists, and failing to prevent or remove the source of that nuisance (see s 26(2).

If a public health nuisance affects you, you may complain orally or in writing to an authorised officer, ensuring you state what you believe to be the source of the public nuisance (see Public and Environmental Health Act 2011 (NT), s 27). Following, there will be an investigation of the complaint and a public health notice may be issued upon the person causing the nuisance (ss 28 and 29).

Water Laws and Pollution

In addition to the above licences, the NT EPA Chair has the power to grant discharge licenses for waste under s 74 of the Water Act (NT).

The Water Act 1992 (NT)(WA) and Water Regulations (NT) control the use, regulation and management of water in the Northern Territory. In addition to the WMPCA, the WA is important legislation that regulates pollution, namely water pollution. Additionally, they create a system for allocating water to people, the environment and industry and require people undertaking certain works (such as water extraction) to hold licenses.

Under s 7 of the WA, the mining industry holds an exemption with regards to water licenses and permits for extraction of surface and groundwater. Instead, this type of water pollution is regulated by the legislation that controls the type of resource being extracted. For further information, refer to Planning and Development.

Pollution provisions under the Water Act only apply to the mining industry in two circumstances:

• Where water pollution caused by mining escaped from the mining site, or petroleum site, to a non-mine site area, or
• Where an underground waste disposal associated with mining takes place and the waste is not confined to the mining site or petroleum site. The WA provides two important environmental protection mechanisms:
  
  1. It provides a process for water to be allocated to the environment to maintain the health of aquatic systems ('environmental water') when water allocations are planned (Water Act (NT), s 22B(5)(a))
  2. It creates criminal offences for water pollution (Water Act (NT), s 16).

Sewerage Laws and Pollution

The Water Supply and Sewerage Services Act (NT) exist to promote and enforce safe and efficient water supply and sewerage services that are financially viable and that protect the interests of customers (Water Supply and Sewerage Services Act (NT), s 3).

When conducting works relating to sewerage infrastructure, the person (or company) doing the works must cause as little damage a possible to the land (Water Supply and Sewerage Services Act (NT), s 12). When works are complete, the land must be restored as close as possible to the condition before the works started (Water Supply and Sewerage Services Act (NT), s 62(4)(a)). People (or companies) who have sewerage services infrastructure may remove trees, crops or shrubs up to 1.5m either side of that infrastructure, without needing to tell anyone in advance (Water Supply and Sewerage Services Act (NT), s 64(4)(b)).

Section 99 of the Water Supply and Sewerage Services Act makes it an offence for a person to pollute (with any substance) an infrastructure designed for the storing or supply of water for human consumption. Additionally, partaking in activities such as boating, swimming or allowing a pet to swim in an infrastructure designed for the storing or supply of water for human consumption is an offence (Water Supply and Sewerage Services Act (NT), s 99(1)).

Common Law

In addition to the above causes of action, it is possible that a pollution incident may give rise to common law claims, such as trespass and negligence. If a pollution incident relates to activity that constitutes trespass or negligence, it may be possible to claim an injunction as well as claim damages for losses sustained by injury to a person or damage to a property. An injunction is an order made by a court to stop a person doing something, or in some cases, to require them to do something. Damages is an award of money to be paid by a person as compensation for a loss or injury.

A claim in trespass may be available where a person intentionally or recklessly allows something to enter onto another person's land. For instance, dumping rubbish on another person's property may constitute trespass.

A claim in negligence may be available where a person has not taken reasonable care to avoid a reasonably foreseeable risk of causing damage to property or injury to a person. If pollution has damaged land or a person has become injured by pollution caused by negligence, it may be possible to seek an injunction and file a compensation claim or damages for the loss or damage suffered.

National Environmental Protection Council

The establishment of the National Environmental Protection Council (NEPC) occurred under the National Environment Protection Council Act 1994 (Cth), which has been reinforced within the NT jurisdiction in the National Environment Protection Council (Northern Territory) Act (NT) (NEPCNT). Initially, the NEPC was established in the Inter-Governmental Agreement on the Environment, signed by all three levels of Australian government in 1992.

Objectives

The NEPC was established to give all Australians the benefit of equal environment protection irrespective of where they live, and ensure that business decisions are not distorted or markets fragmented by variations in the way environmental law is applied in the various States and Territories. This sentiment is captured in the objectives of the NEPCNT, at s 3.

Structure

The NEPCNT sets out the structure and formation of management of the NEPC, at sections 9, 10 and 11. The Council consists of a Minister of the Commonwealth (nominated by the Prime Minister), a Minister of each participating State (nominated by the Premier of the State) and a Minister of the Territory (nominated by the Chief Minister of the Territory). In addition, the Minister of the Commonwealth is considered the Chairperson of the Council.

Powers of the NEPC

The Council has a wide scope of power to engage in all activities necessary to ensure that it is enforcing its objectives. The Council may undertake necessary research and consultation with various levels of government, any relevant bodies or persons, to provide information to the public (including industry) (NEPCNT s 13). Section 14 of the NEPCNT grants the Council to make National Environment Protection Measures, insofar as they relate to the following:

• Air, marine, estuarine and water quality
• Protection of amenity in relation to noise
• Advice relating to sit contamination and hazardous wastes
• Re-use and recycling of used materials National Environment Protection Measures are researched, designed and written to manage particular aspects of the environment. For example, there is a National Environmental Protection Measures titled the National Environment Protection (Diesel Vehicle Emissions) Measure 2011. Drafts of proposed National Environment Protection Measures must be published in the Commonwealth gazette, and a newspaper circulating the Territory (NEPCNT s 16). It should be open for public submissions and consultation (NEPCNT s 19). Typically, National Environment Protection Measures are made and it is then up to each individual jurisdiction to apply its implantation. National Environment Protection Measures made by the NEPC can be found at the Council's website.