Kerb your enthusiasm: How effective is a council's power to issue a clean-up notice for illegal dumping on public land?

Many local councils have found it difficult to regulate and enforce illegal dumping of household waste onto the kerbside. This is largely attributed to several factors, including the lack of a clear regulatory framework for enforcement, and evidentiary difficulties in identifying the person responsible for the illegal dumping.
In 2024 the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) was amended with the intention of providing local councils with additional powers to curb illegal dumping, particularly where the person responsible for depositing the waste cannot be identified. However, there are questions as to the practical application of these powers, raising the need for councils to take a cautious approach until their operation becomes clearer.
Background
Clean-up notices and pollution incidents
Prior to the amendments, a local council already had broad powers (where it is the appropriate regulatory authority) to issue clean-up notices to owners and occupiers of premises, as well as to polluters, where the council ‘reasonably suspects that a pollution incident has occurred or is occurring’ (see section 91(1) of the POEO Act).
However, the definition of ‘pollution incident’ does not always capture the types of household waste commonly dumped in a public place. For example, in order to satisfy the definition of ‘land pollution’ the placement of the household waste in the public space would need to likely cause:
‘…the degradation of the land, resulting in actual or potential harm to the health or safety of human beings, animals or other terrestrial life or ecosystems, or actual or potential loss or property damage, that is not trivial …’
This means that discarded mattresses, clothing, whitegoods and electronics, for example, would in most instances fall short of a pollution incident that would permit a council to issue a clean-up notice.
Amendments to the POEO Act
In seeking to address these issues, the POEO Act was amended in April 2024 by the Environment Protection Legislation Amendment (Stronger Regulation and Penalties) Act 2024 (NSW) (Amendment Act).
In the Second Reading Speech, the Minister for the Environment stated that the Bill:
“… expands the clean-up notice provisions so they can clearly be used for littering and illegal dumping. Local councils have called for reform to regulation of illegal dumping … By introducing new offences, verbal directions and improved clean-up powers, we empower local councils to address this growing issue effectively. I know many council compliance officers who have lived in absolute frustration for decades. I know some who have given up in some local government areas because it is just too hard. These reforms are informed by feedback from regional illegal dumping squads and local government, ensuring that our responses are tailored to address the unique challenges faced by communities.”
Similarly, the EPA stated that the Amendment Act:
“… will make it easier to issue clean-up notices to address waste and litter issues and overcome some of the technical issues that may have made this more difficult in the past. The Act inserts a new provision which provides that clean-up notices can be issued for littering … as if it was a pollution incident …”
What do the amendments actually allow?
Section 144AG(1) was inserted into the POEO Act by the Amendment Act. Relevantly, it provides that the clean-up provisions, including section 91, apply to the depositing of litter or waste: ‘…as if the depositing of the litter or waste were a pollution incident’.
Ideally, sub-section 144AG(1) would be interpreted as a simple statement that littering is a ‘pollution incident’ for the purposes of issuing a clean-up notice. This interpretation would be consistent with the comments of Parliament and the EPA above.
However, new section 144AG(2) limits sub-section 144AG(1), in providing that whenever the phrase ‘premises at or from which the authority reasonably suspects that a pollution incident has occurred or is occurring’ appears in section 91, it must be read as ‘premises on which litter or waste has been deposited’. That is, the emphasis is on the owner or occupier of the premises where the waste has been dumped (which in the case of the kerbside, would likely be the council), and not the owner of occupier of the premises from where the waste was generated.
Section 91(1)(a), when read through the lens of section 144AG(1) and (2), now reads that a council may:
‘direct an owner or occupier of premises at or from which the authority reasonably suspects that a pollution incident has occurred or is occurring on which litter or waste has been deposited … to take such clean-up action as is specified in the notice and within such period as is specified in the notice.’
Some observations regarding the new powers
As a result of section 144AG councils are no longer restricted by the ‘pollution incident’ definition because the clean-up power now relates to ‘litter or waste’, each of which are defined in the POEO Act far more expansively than ‘pollution incident’.
In our experience the greatest difficulty for a council when regulating illegal dumping of household waste is evidentiary. For example, often a council will have a strong suspicion that waste that has been illegally dumped on the kerbside originated from a particular multi-unit dwelling, but lacks evidence to definitively prove this. It would have been helpful if section 144AG enabled an authority to issue a clean-up notice on the owner or occupier of the premises from which the council suspects the waste to have been generated.
However, whereas section 91 formerly allowed a clean-up notice to be issued on the owner or occupier from which a pollution incident is suspected to occur, section 144AG means that a clean-up notice for illegal dumping may only be issued to the owner or occupier of the premises on which the waste has been deposited. This poses considerable difficulty for councils seeking to issue a clean-up notice in response to illegal dumping on public land, such as kerbside dumping. In these cases, the council is typically the owner, and often occupier of the land on which the litter or waste has been deposited – making it impractical and ineffective for the council to issue a clean-up notice to itself.
Previously councils could issue a clean-up notice if they ‘reasonably suspected’ that litter or waste (formerly pollution incident) was being deposited (formerly being deposited or generated). Without wishing to comprehensively summarise judicial authority on the subject, a ‘suspicion’ is a state of mind that is more than idle wondering but less than belief or knowledge, and a suspicion is ‘reasonable’ where the average person would also have that suspicion (often supported by evidence). The ‘reasonable suspicion’ threshold has been removed by section 144AG, meaning litter or waste must now, in fact, have been deposited on the premises. As a result, councils must now satisfy a greater factual and evidentiary burden to take enforcement action.
Until there is greater certainty about their operation, we recommend local councils take a cautious approach when issuing clean-up notices for illegal dumping and littering on council-owned land.
Would you like to discuss this issue further?
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