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The Natural Resources and Other Legislation Amendment Act (No 2) 2010 (NROLA Act) received royal assent on 1 December 2010 and is waiting for a commencement date to be specified. Amendments to section 320 of the Environmental Protection Act 1994 (Qld) (EP Act) impose greater obligations to notify environmental harm on ‘a person who, while carrying out an activity, becomes aware that serious or material environmental harm is caused or threatened by their own or someone else’s act or omission’.

The NROLA Act broadens the scope of the EP Act, decreases time frames for giving notice and significantly increases penalties for failure to comply.

Prior to amendments made by the NROLA Act, section 320 imposed a duty to notify serious or material environmental harm. The legislation required that a person notify the Department of Environment and Resource Management (DERM) as soon as is reasonably  practicable and did not require the relevant parties to notify others who might also be affected by the environmental harm.

Changes to notice requirements

On becoming aware of an event that causes or threatens serious or material environmental harm a person must provide written notice of the event, its nature and the circumstances in which it happened to the DERM within 24 hours.

According to the Act material environmental harm is environmental harm that is not trivial or negligible in nature or that causes actual or potential loss or damage to property in the range of $5000 to $50,000. Activities will amount to material environmental harm if the harm results in costs between $5000 - $50,000 to prevent or minimise the harm and rehabilitate or restore the environment to its condition before the harm.

Serious environmental harm is environmental harm that is irreversible, high impact or widespread, caused to an area of high conservation value or special significance or that causes actual or potential loss or damage to property in excess of $50,000. The harm will amount to serious environmental harm if the harm results in costs exceeding $50,000 to prevent or minimise the harm and rehabilitate or restore the environment to its condition before the harm.

Where an employee is aware that an event has happened that causes or threatens serious or material environmental harm that employee must notify their employer. In circumstances where the employer cannot be contacted, the employee must give written notice to DERM. In both cases notice must be given within 24 hours.

The NROLA Act prescribes that written notice including the event, its nature and circumstances must be given to occupiers of affected land as soon as reasonably practicable by leaving it with an adult working or living on affected land, leaving the notice in a position where it is reasonable likely to come to the occupiers attention, posting to the affected land or giving public notice by way of radio or television broadcast.

Under the new legislation penalties for failure to notify have increased from $10,000 for an individual and $50,000 for a corporation to $50,000 and $250,000.

Is the legislation workable?

There are concerns surrounding the introduction of section 320. Firstly the requirement of notification to the authority within the 24 hour timeframe may be impossible in some circumstances. Secondly the legislation requires the registered owner of the affected land, occupier of the affected land and persons at the affected land to be notified as soon as reasonably practicable. Notification must be accompanied by information regarding the extent of actual environmental harm which may be indeterminable at that point in time.

Thirdly where a party fails to notify within the 24 hour period there is no ongoing legislative requirement that calls for a party to notify the authority once they have already missed the 24 hour period. Failing to notify once the 24 hour period has elapsed will defeat the object of the legislation to ensure that environmental harm is reported before irreparable damage is caused.

It is a defence for a person to prove that, despite failing to comply with the provisions, they made reasonable efforts to identify the affected land and give written notice to each registered owner or occupier of affected land.

It may prove unworkable to require an employee to notify affected landowners and occupiers, within 24 hours of indentifying environmental harm across a potentially indeterminable area.

Will the legislation lead to an increase in notifications where the DERM does not have enough capacity to fully investigate notifications of environmental harm?

DERM is the lead agency responsible for administering the legislation for the protection of the environment and management of natural resources and will pursue enforcement action against those who ignore their legal environmental obligations.

Concern surrounds the capacity of the DERM and local government bodies to deal with the increase in notifications as a result of the legislation.   DERM ‘s Annual Report states that between 1July 2009 and 30 June 2010 90% of valid environmental complaints were responded to within the 5 day prescribed timeframe. Unfortunately, the percentage of valid environmental complaints responded to within the prescribed period is likely to decrease as individuals make more notifications to the authorities in order to ensure they do not fail to comply with the legislation.

Contact us

Michael Byrom, Partner - Brisbane
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