Amendments to NSW environmental laws: a major number of minor amendments
What you need to know
- In September 2025, the NSW Government passed the Environmental Legislation Amendment Act 2025 (ELA Act).
- The ELA Act makes a raft of "minor amendments" to eleven environmental Acts and one regulation to reduce duplication, increase consistency, remove loopholes and clarify areas of ambiguity across those Acts.
- Key amendments made by the ELA Act include increased transparency for environmental notices and environmental management plans (EMPs); an ability to re-use or recycle asbestos waste onsite; an increased financial trigger for the duty to notify pollution incidents; a strengthening of certain penalties and enforcement provisions; the introduction of additional sentencing considerations; an expansion of protection of the environment policies; and an express acknowledgement of the need for an environmental protection licence for livestock processing.
- While a small number of provisions commenced in September 2025 on royal assent, the remaining provisions commence on days to be appointed by proclamation.
- The NSW Government issued its first proclamation on 11 December 2025 declaring a large number of provisions in effect from 12 December 2025. Further proclamations declaring the remaining provisions in effect are expected but the timing of these is unknown.
What you need to do
- The scope of amendments made by the ELA Act is far-reaching. All State and local authorities, developers, construction companies, environment protection licence holders, waste facilities and other operators and entities should be aware of these changes and monitor for future proclamations declaring the remaining provisions in effect.
Minor amendments?
The ELA Act has been described as containing "minor amendments" designed to "reduce duplication, increase consistency, remove loopholes, clarify areas of ambiguity and allow for appropriate environmental risk management practices" in environmental legislation in NSW.
We consider the most significant amendments made by the ELA Act to the Protection of the Environment Operations Act 1997 (POEO Act) and other environmental legislation, and the impact of these changes.
Increased transparency for environmental notices and EMPs
The ELA Act seeks to improve the transparency of environmental notices and EMPs by:
- providing for the registration of clean-up notices and prevention notices under the POEO Act on land titles, upon application by the relevant regulatory authority or public authority; and
- making available to the public, whether by public register or other means, details of any EMPs where implementation of those EMPs is a condition of a statutory audit. To facilitate this, the ELA Act requires site auditors to provide the NSW Environment Protection Authority (EPA) with copies of EMPs which meet this criterion.
These amendments should mean that prospective purchasers and subsequent owners of land are made aware of any such environmental notices or EMPs issued to a previous owner or occupier or that exist with respect to that land. In the case of EMPs, this increased transparency should also mean greater implementation and ongoing application of these plans and, hopefully, an overall improvement in contamination management and remediation in NSW.
Notably, in the case of environmental notices, the amendment does not have the effect of requiring subsequent owners to comply with those notices. So, while this provision has the potential to improve transparency around environmental notices by providing for these notices to appear on ordinary property searches, and will support more informed decision-making during due diligence, it does not alter the position on liability.
Nevertheless, these amendments are likely to mean heightened scrutiny of environmental liabilities in future property transactions should any environmental notices or EMPs be registered or publicised.
Ability to re-use or recycle asbestos waste onsite
It is an offence under section 144AAB of the POEO Act to cause or permit asbestos waste in any form to be re-used or recycled. Asbestos waste is any waste that contains asbestos, irrespective of concentration. In practice, this has meant that excavated materials containing even a small amount of asbestos have had to be disposed of at landfills.
The ELA Act limits this prohibition to only asbestos waste that is "received from off-site". This change will allow soil that contains asbestos to be lawfully remediated on-site, without it breaching the prohibition on recycling and reusing asbestos waste. The change seeks to ensure consistency between the POEO Act and the Contaminated Land Management Act 1997.
This is likely to be a welcome change for developers and local councils alike as it will likely reduce the cost of construction, whilst also easing existing pressures on landfills.
Financial trigger in the duty to notify pollution incidents increased
Section 148 of the POEO Act mandates that certain pollution incidents causing or threatening material harm to the environment be notified to relevant authorities. The POEO Act provides that harm is material if:
- it involves actual or potential harm to the health or safety of human beings or to ecosystems that is not trivial; or
- it results in actual or potential loss or property damage exceeding $10,000. "Loss" for these purposes includes reasonable costs incurred to prevent, mitigate or make good harm to the environment.
The ELA Act increases the monetary trigger in limb (b) to $50,000.
The EPA considers the revised trigger of $50,000 to be more consistent with other jurisdictions and a more reasonable threshold for triggering incident reporting obligations. Incidents which incur losses or damage below this threshold are usually contained and more easily remedied.
We consider this a long overdue change that will achieve an obligation to notify incidents which is more commensurate with the nature of such incidents.
We recommend organisations review and update their environmental incident response plans and notification procedures to reflect this increased financial trigger.
Penalties and enforcement provisions strengthened
The ELA Act makes various changes to the enforcement provisions of the POEO Act including the following.
- New executive level offences: The ELA Act replicates the executive liability provisions which currently only exist in the POEO Act in the Plastic Regulation and Circular Economy Act 2021, the Product Lifecycle Responsibility Act 2005, and the Waste Avoidance and Resource Recovery Act 2001. These provisions mean that where a company commits an executive liability offence, directors can also be held liable. Usual defences continue to apply, such as having taken all reasonable steps to prevent the offence.
- New offence to harass an EPA Officer: The ELA Act introduces an offence for harassing (undefined) an EPA Officer, whether in person, over the phone, or via text message, email or social media. An EPA Officer includes any person who administers or exercises functions under environment protection legislation, as well as the Biodiversity Conservation Act 2016, the Forestry Act 2012 and the Local Land Services Act 2013. The maximum penalty under the ELA Act is $2 million for a corporation or $500,000 for an individual plus, in both cases, additional daily fines each day the offence continues. We recommend organisations review and update their environmental procedures and communications protocols to acknowledge this new offence and to direct compliance.
- Increased penalties for industrial chemical offences: The ELA Act seeks to align penalties for industrial chemical offences (ie relating to the NSW Industrial Chemicals Environmental Management Standards (IChEMS)) with serious waste offences under the POEO Act, which were recently increased by the Environment Protection Legislation Amendment (Stronger Regulation and Penalties) Act 2024. This includes doubling penalties for the most serious IChEMS offences, including the daily penalties. For example, dealing with an industrial chemical listed in the IChEMS register in a manner that is prohibited in the register will attract a maximum penalty for an individual of $1 million and a daily penalty of $120,000, instead of $500,000 and $60,000, respectively. For corporations, the maximum penalty will be $4 million and a daily penalty of $240,000, instead of $2 million and $120,000, respectively.
- Repeat waste offences provisions extended to include failure to hold a licence: The ELA Act extends the list of waste offences that constitute repeat waste offences under the POEO Act to include offences relating to a failure to hold a licence. The repeat waste offence provisions apply where a person who has been convicted of a waste offence under the Act goes on to commit a separate subsequent waste offence within 5 years, that person is deemed to have committed a repeat waste offence and is liable for the maximum monetary penalty under the Act or two years imprisonment, or both.
These amendments are reflective of the NSW Government's public commitment to strengthening environmental legislation.
Additional sentencing considerations
The ELA Act expands the list of matters under section 241 of the POEO Act that must be considered when imposing a penalty for an offence under that Act or the regulations to include:
- environmental justice principles; and
- the impact of the offence on Aboriginal cultural values and practices.
"Environmental justice principles" is defined to mean principles intended to prevent or minimise (or having the effect of preventing or minimising) the disproportionate impact of environmental harm on vulnerable or disadvantaged communities or persons.
The introduction of these two additional considerations was described in the second reading speech as important for bolstering deterrence and signalling that impacts on vulnerable groups will be taken seriously under the law.
As a consequence of this amendment, we can expect to see the EPA, in certain cases, seeking to adduce further evidence and reports on the impact of particular incidents on First Nations cultural values and practices and other vulnerable or disadvantaged communities in sentencing hearings, and respondents should be prepared to respond on such matters.
Expansion of Protection of the Environment Policies
The POEO Act empowers the EPA to declare Protection of the Environment Policies (PEPs) to be observed with respect to protecting the environment in NSW. PEPs may comprise environment protection goals, standards, guidelines or protocols.
The ELA Act expands the scope of PEPs by providing that a PEP may require any person to take the PEP into consideration when carrying out a relevant activity. Before this change, the POEO Act only required the EPA, regulatory authorities, local councils and other public authorities to take into consideration any relevant PEPs when making certain decisions (for example, a local council must consider any relevant PEP when preparing a local environmental plan or development control plan).
Notably, the ELA Act does not go so far as to require compliance with a PEP (ie it is not an offence to fail to comply with a PEP).
However, it likely means more scope for judicial review challenges against decisions made with reference to PEPs.
Environmental Protection Licence required for meat processing
The ELA Act amends clause 23 of Schedule 1 of the POEO Act to make clear that the processing of livestock, not just slaughter, requires an environmental protection licence.
This amendment looks to be a direct response to the NSW Land and Environment Court's decision in Hypro (Aust) Pty Ltd v Environment Protection Authority [2020] NSWLEC 106 in which the court declared that the pet food manufacturing process carried out by Hypro was not an activity of "general animal products production" or any of the other licensable activities referred to in clause 23 of Schedule 1 of the POEO Act.
This amendment clarifies that a licence is required for activities resulting in products derived from the processing of livestock, in addition to slaughter. Organisations involved in livestock processing activities that are not already licensed should be cognisant of this change and consider seeking legal advice as to the implications of this amendment on their business. This is particularly pertinent given the current lack of transitional provisions which means this "clarification" takes effect as soon as the provision commences (in this case, on 12 December 2025) meaning organisations could suddenly find themselves in breach.
What's next?
The ELA Act is in force but the roll out of amendments delivered by the ELA Act is being staggered. A small number of provisions commenced in September 2025 on royal assent, but the remaining provisions commence on days to be appointed by proclamation.
The first commencement proclamation was issued on 11 December 2025. It put into effect several of the amendments discussed above including: the registration of clean-up notices and pollution notices; the increased monetary trigger for notifiable "material harm" to the environment; the expansion of repeat waste offences; the new offence concerning the harassment of EPA officers; the expansion of PEPs; and the clarification that slaughter and processing of livestock requires a licence.
The following amendments are yet to take effect: the narrowing of prohibitions on reusing asbestos waste originating from on-site; the new executive level offences in the Plastic Regulation and Circular Economy Act 2021, the Product Lifecycle Responsibility Act 2005, and the Waste Avoidance and Resource Recovery Act 2001; and the increased penalties for waste-related offences.
Given the breadth and reach of these changes, all State and local authorities, developers, construction companies, environment protection licence holders, waste facilities and many other operators and entities should be aware of these changes and monitor for future proclamations declaring the remaining provisions in force.
Please contact a member of the Planning, Access and Environment team if you would like any further information about how the ELA Act may affect you.
