STATE RECOGNISES THE SERIOUSNESS OF WATER CONTAMINATION

The State has significantly increased the maximum penalty attached to various offences under the Environmental Protection Act 1994 (EPA) including s440ZG for water contamination.

Doubling the maximum penalty from 300 to 600 penalty units ($68, 310) for non-wilful contraventions as well as increasing the on-the-spot prescribed infringement notice (PIN) amount to $5692 for offending companies (from $2277) is a clear signal to local government, developers, land owners, consultants and contractors of the importance of environmental protection to the State.

PECULIAR NATURE OF WATER CONTAMINATION OFFENCES

Whilst the investigation and enforcement of any matter within its jurisdiction is, properly, at the discretion of local government, water contamination offences are potentially unique in nature when compared to the other matters regulated by local government such as development offences for an unlawful use: often the adverse effects of water contamination, particularly caused by sediment, can flow across local government boundaries.

WHAT DOES THIS MEAN IN TERMS OF ENFORCEMENT ACTION?

Increasing the maximum penalty will not be a general or specific deterrent unless and until local government takes regular and consistent enforcement action (such action not necessarily being a prosecution). The EPA contains a broad suite of enforcement tools that investigators may use, such as direction notices and PINs which may effectively avoid the need for legal proceedings. That said, in some instances, laying a complaint is the appropriate action and seeing it through may result in a strong and widespread deterrent.

In this respect, it should be noted that depending upon the circumstances of the matter, including for example, how many “deposits” of earth there are, the relevant catchments and the associated ESC treatment train, how many proposed lots there are and the like, it may be appropriate to issue more than one PIN for any one “site”.

Arguably, the most effective investigation tool is regular inspection which can lead to positive relationships between local government and the various development stakeholders. Inspections are, however, resource intensive.

If local government was to increase its enforcement measures in line with the State legislature’s clear regulatory signals, then an opportunity exists to liaise with other local governments and coordinate investigation and enforcement protocols to ensure consistency and fairness throughout the region.

NAUGHTY BUT NICE LIST?

In recent years the number of direction notices issued, PINs issued and complaints laid for water contamination offences has decreased. This could be because of budgetary constraints for local governments or the development industry has widely been compliant with the EPA. However, given the doubling of the maximum penalty and the increase in the PIN amounts, it is more likely that the State Government is signalling that extra work needs to be done in the industry to minimise offences occurring.

If local government intends to give greater attention to this area after a time of enforcement malaise, it would be appropriate to consult with the various industry bodies across the full spectrum including land owners, developers, consultants and contractors and to highlight increased regulatory attention in this area.  This may also present an opportunity to hear from the stakeholders about practical operational difficulties and possible solutions including new designs and techniques in erosion and sediment control and better conditions (for example, conditions may require photographic proof when certain stages are reached or limit the time in which a site may be disturbed) in development approvals so that variations to contracts and rescheduling of works are unnecessary.

These industry stakeholders may even have some insight as to when a complaint should be made about a consultant who has not complied with the requirements/expectations of him or her, as set by industry registration/accreditation schemes such as Registered Professional Engineer Queensland (RPEQ) and Certified Professional in Erosion and Sediment Control (CPESC).

Irrespective of past enforcement, telephone calls, offers to present at seminars or workshops and correspondence drawing to the stakeholders’ attention this interesting development in water contamination offences may go a long way in the fight against water contamination.

On a practical level it may well be appropriate for policies to be developed giving warnings before taking enforcement action; again, this should depend upon the circumstances. Also, local governments should not be obstinate in their enforcement approach. There may well be circumstances where, say, a contractor has an excellent or improving history of compliance with the EPA or even exceeding the expectations set by the EPA but for one reason or another has contravened the Act. In those circumstances, the local government may decide to take no further action. Local governments would be wise, however, to fully document the factors leading to any such decision as a record of when warnings were given, to whom, and for what may prove to be beneficial to the investigator if further offending occurs.

That said, the Environmental Protection and Other Amendment Bill 2014 was open for consultation before it became the amending Act. The increase in penalty should not come as a surprise to the various stakeholders.

The annual economic benefit that flows from South-East Queensland’s waterways is $5.1 billion, including $2.9 billion from the Nature Based Tourism sector.[1] If a site has none, or little ESC measures (and sediment that escapes from the site has a cumulative negative impact on the waterways and hence a negative monetary impact on Queensland’s economy), then a PIN for $5692 may not amount to much of a deterrent where the recipient may have taken a chance by cutting costs for a long time over a number of projects. It should be noted that whether a site is being worked on over the Christmas break or not, does not alleviate the need to comply with the legislation.

The timing of these changes to the EPA and the potential for higher levels of regulation by local government serves as a particular reminder for industry participants such as land owners, developers, consultants and contractors that whether someone receives a “wanted” Christmas present from Santa is often the result of solid negotiation and a year long history of being good, or, at least being good as summer rolls in (and with it storms) and Christmas draws near.