Businesses which store or transport waste are on notice of a system-wide tightening of environmental law enforcement regimes, as the New South Wales Environment Protection Authority (EPA) and New South Wales Land and Environment Court both clamp down on improper practices.
Name-and-shame register
This crack-down has been headlined by the Government’s introduction of a new ‘name-and-shame’ register for environmental offenders. The new register is designed to highlight poor environmental practices, and to warn and protect the public. It lists directors, related business names, business email addresses and telephone numbers, and any known aliases.
The new register was introduced as part of a suite of changes to the Protection of the Environment Operations Act 1997 (NSW) made throughout 2024, which also involved a doubling of penalties for certain environmental crimes and increased powers to deter repeat offenders. The first two businesses were added to the new register in December 2024, with the EPA issuing warnings to the public not to deal with one of the businesses and to ‘exercise significant caution in dealing with the other business.
Transportation of waste offences
This strengthened enforcement regime for environmental offences has been emphasised in a number of recent matters involving the transportation of waste, with asbestos a key focus. These cases have included:
- a business which delivered soil to be used as waste fill, was fined $33,750 by the Local Court in January 2025 when the soil was found to contain asbestos and the business did not respond to a clean-up notice or a notice to provide information; and
- the EPA commenced prosecutions in December 2024 against three companies and one individual over the discovery of bonded asbestos within mulch fill at 26 sites, including the Rozelle Parklands. The charges related to alleged breaches of an Environment Protection Licence (EPL) and a Resource Recovery Order, the alleged carrying out of scheduled activities without a licence, the alleged re-use of asbestos waste, and alleged executive liability.
Enforcement action for improper storage of waste
The storage of waste has also come under recent scrutiny from the EPA and the courts. Examples have included:
- the EPA issued two penalty notices totalling $60,000 and an official caution to a company in Western Sydney in December 2024 for allegedly stockpiling 150 tonnes of waste tyres (whilst only licensed to stockpile 50 tonnes), and allegedly stacking some of the waste tyres against internal walls and in tall and heavy piles; and
- in a decision handed down by the Land and Environment Court in October 2024, the Defendant was fined over $300,000 for the improper disposal of waste by depositing shredded rubber on top of exposed landfill waste, which exacerbated both the risk and effect of a fire which subsequently broke out on the stockpile. The Court found that the Defendant’s wilful disregard of previous advice from the EPA not to place shredded rubber on top of its exposed landfill waste (and instead to use virgin excavated natural material), along with its knowledge that its conduct breached the conditions of its EPL, increased the objective seriousness of the offence.
Sentencing considerations
Meanwhile, Land and Environment Court decisions in November and December 2024 have provided further new insights into the enforcement of other areas of environmental law, including that:
- time and money spent of a defendant’s own accord in remediating environmental harm caused by the offence in question can be taken as evidence of remorse and contrition for sentencing purposes (Environment Protection Authority v Park Pty Ltd [2024] NSWLEC 120 at [169]); and
- where an environmental offence has arisen out of a local council’s failure to adequately maintain a piece of infrastructure, the local council will not be allowed to rely on its poor financial circumstances as a factor in mitigation where there is evidence that these circumstances were ‘self-inflicted’ through previous poor financial decisions made by council staff (Environment Protection Authority v Central Coast Council [2024] NSWLEC 141at [46]).
At McCullough Robertson, our Planning and Environment team has extensive experience in waste and environmental offences. We provide practical, commercial advice and act in enforcement matters. If you are concerned about how these recent changes may affect your business, or require assistance navigating compliance obligations, contact our team to discuss how we can support you.