The Environmental Management and Pollution Control Act 1994 (EMPCA)

The Environmental Management and Pollution Control Act 1994 (EMPCA) is part of the integrated development assessment process and addresses the environmental harm associated with development activities. EMPCA provides for a variety of management tools to prevent, remediate and mitigate environmental impacts.

What is environmental harm?

EMPCA defines environmental harm as “any adverse effect on the environment” (s5). Environmental harm is divided into three categories – serious, material or environmental nuisance.

Serious environmental harm

This involves an actual adverse effect on the health or safety of human beings or on the environment that is of a high impact or on a wide scale; or results in actual loss or property damage exceeding ten times the threshold amount (the threshold amount is currently $5,000).

Material environmental harm

This consists of an environmental nuisance of a high impact or on a wide scale; or involves an actual adverse effect on the health or safety of human beings, or on the environment that is not negligible; or results in actual loss or property damage exceeding the threshold amount (currently $5,000).

Environmental nuisance

‘Environmental nuisance’ means the unlawful emission of a pollutant that unreasonably interferes with, or is likely to unreasonably interfere with, a person’s enjoyment of the environment. For example, noise, dust and odour problems may constitute environmental nuisance.

Environmental harm may be caused by pollution. To ‘pollute’ is defined in EMPCA as: to discharge, emit, deposit, disturb or fail to prevent the discharge of a pollutant. A ‘pollutant’ includes:

• a gas, liquid or solid; or
• an odour; or
• an organism (whether alive or dead), including a virus; or
• energy, including noise (see below), radioactivity and electromagnetic radiation; or
• a combination of pollutants that may cause environmental harm.

In addition, a person is taken to be responsible for polluting if they are “the occupier or person in charge of a place or vehicle at or from which a pollutant escapes or is discharged, emitted or deposited” (s6, EMPCA). Importantly, company directors can be personally liable for the pollution offences of a company. Maximum penalties are four years imprisonment and/or up to $250,000 in fines.

Noise

Noise pollution is regulated under EMPCA and the associated Environmental Management and Pollution Control (Noise) Regulations 2016 (the Noise Regulations). Noise may constitute an environmental nuisance if it ‘unreasonably interferes with a person’s enjoyment of the environment’ having regard to:

• its volume, intensity or duration; and
• the time, place and other circumstances in which it is emitted; and
• in the case of noise emitted from residential premises, whether it can be heard in a habitable room in any other residential premises’ (s53).

The Noise Regulations prescribe acceptable noise levels and permissible hours of operation for various activities. See ‘Neighbours’ for a table of permissible activities and hours of operation. For example, lawnmowers can be operated between 7am and 8pm Monday to Friday, 9am and 8pm on Saturdays and 10am and 8pm on Sundays. Noise emitted from an average lawnmower should not exceed 74dB(A). Provided the noisy activity operates within these limits, it will not constitute an environmental nuisance.

If a neighbour is carrying on an activity that you consider makes an unreasonable noise, it is advisable to first contact the neighbour to try to resolve the issue informally. If no resolution is possible, contact your local council, or the police if it is after hours.

Local council officers and the police have powers under the EMPCA to investigate possible noise pollution incidents on domestic and commercial premises, and can issue an Environmental Infringement Notice (EIN) or an Environment Protection Notice (EPN) upon a person or business causing noise pollution. These enforcement options are discussed in detail below.

Please note, special legislation exists to deal with nuisance caused by barking dogs. Under the Dog Control Act 2000 a dog owner must not allow their dog to unreasonably interfere with the peace, comfort and convenience of other people. If you are concerned about barking dogs, contact your local council.

The defence of due diligence

It will be a defence to a claim that a person has caused environmental harm, including environmental nuisance, to show that all reasonable and practicable measures were taken to prevent the environmental harm.