Posted on August 26, 2025 by Anna Sinclair and 8

Bill to Further Strengthen Environmental Protection Introduced into NSW Parliament

The Environmental Legislation Amendment Bill 2025 (Bill) was recently introduced in the NSW Parliament. The Bill proposes significant changes to a number of environmental laws which are relevant to local councils and state agencies, particularly the Protection of the Environment Operations Act 1997 (POEO Act).

The long title to the Bill is ‘An Act to make miscellaneous amendments to legislation administered by the Minister for Climate Change and the Minister for the Environment to strengthen environmental protection; and for related purposes‘.

We set out a number of the significant proposed amendments relevant to local councils and state agencies below.

Penalties and Enforcement

Harassment of officers

The Bill proposes to create a new general offence to ‘harass’, including by means of a telecommunications service, another person on the basis the person is or was an ‘EPA officer’.

While that section refers to ‘EPA officer’ the definition provided is much wider than only appointed officers of the Environment Protection Authority (EPA):

‘(a) a person appointed by the EPA as an authorised officer under section 187, or

(b) a person who administers, or exercises functions under or in connection with, any of the following—

(i) environment protection legislation, [which is defined to include the POEO Act and a number of other Acts]

(ii) the following Acts—

(A) the Biodiversity Conservation Act 2016,
(B) the Forestry Act 2012,
(C) the Local Land Services Act 2013,
(D) another Act prescribed by the regulations.‘

We consider that definition would likely capture a number of council officers and state agency officers who also exercise functions and powers under the legislation set out above. Whether that was the intended effect of the amendments is unclear, we hope that will be addressed prior to the passing of the Bill. 

The meaning of harass is not provided in the Bill. However, we consider it would likely be given its usual meaning of a pattern of behaviour or a course of conduct pursued by an individual with the intention of intimidating and distressing the other person.

Harassment only becomes a crime under this provision where it is done on the basis that the person is or was an EPA officer as defined. Proving the harassment occurred on the basis that the person was an EPA officer will greatly limit the general application of the provision.

Executive liability

The Bill also proposes to provide for executive liability offences which attribute liability to directors or other managers for offences committed by a corporation. Those provisions will be added into the Waste Avoidance and Resource Recovery Act 2001, the Plastic Reduction and Circular Economy Act 2021 and the Product Lifecycle Responsibility Act 2025.

There are also two new offences related to notices issued under the POEO Act which will now also attract executive liability.

Registration of notices on land title

Finally, the Bill also provides that the EPA and councils will be provided with a power to register both clean-up and prevention notices under the POEO Act on the land title register. That is intended to ensure transparency in relation to those notices, and to ensure that any subsequent owner is aware of that a notice has been issued to the previous owner or occupier.

This amendment would not have the effect of requiring any subsequent owner to comply with the notice, but it may impact the current owner’s ability to sell that land.

Sentencing considerations – Aboriginal cultural values and environmental justice

Currently a number of matters are required to be taken into account by a court (where relevant) under s241 of the POEO Act in imposing a penalty for an offence against the POEO Act or regulations. They include the extent of harm caused and the reasonable foreseeability of the harm caused by the offending.

The Bill proposes to require that environmental justice principles and the impact of the offence on Aboriginal cultural values and practices (including impacts on lands, skies, waters, plant and animal species and seas) having regard to the spiritual and cultural significance of the impact of the offence be considered where relevant.

Environmental justice principles are defined as principles intended to prevent or minimise, or which have the effect of preventing or minimising, the disproportionate impact of environmental harm on vulnerable or disadvantaged communities or persons.

The Bill provisions appear to reflect concerns that disproportionate impacts of offending on vulnerable groups and Aboriginal culture values are not being adequately considered. It is intended to strengthen deterrence and signal to courts that penalties should address inequity of harm.

Importantly, those provisions are proposed to apply to proceedings commenced but not finally determined before the commencement of the provisions.

Land Pollution

In a recent Land and Environment Court decision (see here Environment Protection Authority v Fair – NSW Caselaw) the Court rejected an argument that the placement of waste tyres in storage containers on a site was land pollution under the POEO Act.

The Bill proposes to expand the definition of land pollution under the POEO Act to cover matter being placed in or on buildings, chattels or fixtures on, below or above land (e.g. matter placed in a shipping container), rather than just on land itself.

Requirements to Report Pollution Incidents

Under s147 of the POEO Act a duty to notify the relevant authority of a pollution incident arises where material harm to the environment is caused or threatened. The definition of “material harm to the environment” for the purpose of this duty is proposed to be amended by the Bill.

Material environmental harm includes actual or potential harm to the health or safety of human beings or to ecosystems that is not trivial. It is also defined in relation to actual or potential loss or property damage which includes reasonable costs and expenses in taking measures to prevent, mitigate or make good harm to the environment.

The Bill proposes that harm in relation to actual or potential loss or property damage will only be material where in total it exceeds $50,000 rather than the current $10,000. Where loss is already defined to include mitigation measures, that appears to be a sensible amendment.

Protection of the Environment Policies Expanded

Protection of the Environment Policies (PEPs) can currently be made under the POEO Act to declare policies (goals, standards, guidelines or protocols) to be observed with respect to protecting the environment. The EPA is currently reviewing a draft Sustainable Construction PEP applicable to major public infrastructure projects undertaken by NSW government agencies, which will be the first in NSW – see here Protection of the Environment Policy | NSW Environment Protection Authority.

The Bill proposes that PEPs will need to be taken into consideration by any person carrying out a relevant activity (rather than just government agencies or other public authorities such as local authorities). It is proposed that applying PEPs widely will allow the EPA to set expectations for environmental standards, drive behavioural change and improve environmental performance across industries.

While PEPs are proposed to apply more broadly, there is no legislative requirement to comply with the provisions of a PEP. PEPs become another one of the matters which the relevant person ‘must take into consideration’ in order to make a valid decision. Subject to more PEPs coming into effect, that amendment will likely expand the potential for judicial review challenges against decisions made with reference to PEPs.

Publication of Environmental Management Plans

Environmental Management Plans (EMPs) are plans for the management of contamination of land, through the existing or proposed use of the land, that may include measures for mitigation or monitoring of the contamination.

Currently, EMPs are not accessible by the public meaning that their obligations can be overlooked particularly upon sale of a site. The Bill now proposes that site auditors be required to provide the EPA and the local authority with a copy of any EMP that needs to be implemented as a condition of a statutory site audit. The EPA is also required to keep a record of the details of an EMP provided to it.

The EPA is then provided with the power to make those EMP details public, whether by publication on its website or upon application.

We note that at the same time the amendments remove the general right for the public to access records under the CLM Act on the EPAs website or in person. More power is provided to the government to make regulations in respect of access to records of information kept under the CLM Act. It is questionable whether that amendment is in line with the focus of the amendments to facilitate transparency.

Further Steps

We will post further once the Bill is either passed or amended.

The tabling copy of the Bill setting out the full list of proposed amendments is available here: Environmental Legislation Amendment Bill 2025.

To discuss this post please leave a comment or contact Anna Sinclair on 8235 9713 or James King on 8235 9722.