ENVIRONMENTAL PROTECTION ACT 1986 - SECT 3

ENVIRONMENTAL PROTECTION ACT 1986 - SECT 3

3 .         Terms used

        (1)         In this Act, unless the contrary intention appears —

        analysis means a test or examination of any matter, substance or process for the purpose of determining its composition or qualities or its effect (whether physical, chemical or biological) on any portion of the environment, or examination of emissions or recordings of noise to determine the level or other characteristics of noise or its effects on any portion of the environment;

        analyst means an analyst appointed under section 94;

        appeals committee means an appeals committee appointed under section 45(6) or 106;

        Appeals Convenor means the Appeals Convenor appointed under section 107A;

        applicant , in relation to an application for a works approval or licence, means the person applying for the works approval or licence;

        approved policy means a draft policy approved under section 31(d);

        approved proposal means a proposal the implementation of which is authorised under a Ministerial statement;

        assessed scheme —

            (a)         means a scheme which has been assessed under Division 3 of Part IV and in respect of which a statement has been delivered to the responsible authority under section 48F(2)(a);

            (aa)         includes the first Swan Valley Planning Scheme submitted in accordance with the Swan Valley Planning Act 2020 section 44 and approved under section 25(2)(a) of that Act;

            (b)         for the purposes of Part IV, includes a scheme —

            (ia)         of a class prescribed by regulations made under section 48AAA(2); or

                  (i)         in respect of which the responsible authority has been informed under section 48A(1)(a); or

                  (ii)         in respect of which the responsible authority has not been informed under section 48A(1)(a), (b) or (c) within 28 days after the referral of that scheme to the Authority under the relevant scheme Act; or

                  (iii)         which is a local planning scheme, or an amendment to a local planning scheme, in respect of which sections 124, 125, 126 or 128 of the Planning and Development Act 2005 have been complied with to the extent, if any, necessary in relation to a region planning scheme, or an amendment to a region planning scheme, which amendment or scheme is a scheme referred to in paragraph (a) or subparagraph (i) or (ii); or

                  (iv)         which is a local planning scheme or a region planning scheme, or an amendment to a local planning scheme or a region planning scheme, amended under the Planning and Development Act 2005 section 122J or 122K to the extent, if any, necessary in relation to an improvement scheme, or an amendment to an improvement scheme, which amendment or scheme is a scheme referred to in paragraph (a) or subparagraph (i) or (ii);

            (c)         does not include a scheme in respect of which the responsible authority has been advised under section 48A(2)(b);

        authorised person means a person or member of a class of persons appointed under section 87(1), and includes the CEO;

        Authority means the Environmental Protection Authority continued in existence by section 7(1);

        Authority member means a person for the time being holding office as a member of the Authority under section 7 and includes the Chair and Deputy Chair;

        beneficial use means a use of the environment, or of any portion thereof, which is —

            (a)         conducive to public benefit, public amenity, public safety, public health or aesthetic enjoyment and which requires protection from the effects of emissions or of activities referred to in paragraph (a) or (b) of the definition of environmental harm in section 3A(2); or

            (b)         identified and declared under section 35(2) to be a beneficial use to be protected under an approved policy;

        books , without limiting the generality of the definition of book in section 3 of the Interpretation Act 1984 , includes —

            (a)         any register or other record of information; and

            (b)         any accounts or accounting records,

        however compiled, recorded or stored, and also includes any document;

        CEO means the chief executive officer of the Department;

        Chair means the Authority member appointed to be Chair of the Authority under section 7(4a);

        clearing has the meaning given by section 51A;

        clearing permit means a clearing permit granted and in force under Part V Division 2;

        closure notice has the meaning given by section 68A;

        committee of inquiry means a committee of inquiry appointed under section 29(1);

        Commonwealth Environment Act means the Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth);

        condition includes a restriction or limitation;

        contaminated has the same meaning as it has in the Contaminated Sites Act 2003 ;

        contaminated sites auditor means a person accredited as a contaminated sites auditor under the Contaminated Sites Act 2003 ;

        decision-making authority , in relation to a proposal, means a public authority empowered by or under —

            (a)         a written law; or

            (b)         any agreement —

                  (i)         to which the State is a party; and

                  (ii)         which is ratified or approved by an Act,

        to make a decision in respect of the proposal and, in Division 2 of Part IV, includes, in relation to a particular proposal, any Minister prescribed for the purposes of this definition as being the Minister responsible for that proposal;

        Department means the department of the Public Service of the State through which this Act is administered;

        Deputy Chair means the Authority member appointed to be Deputy Chair of the Authority under section 7(4a);

        development approval means a development approval under a scheme or a scheme Act;

        discharge , in relation to waste or other matter, includes deposit it or allow it to escape, or cause or permit it to be, or fail to prevent it from being, discharged, deposited or allowed to escape;

        draft policy means a draft of an environmental protection policy prepared under section 26;

        driver , in relation to —

            (a)         a vehicle as defined in the Road Traffic (Administration) Act 2008 section 4, has the meaning given by that section; or

            (b)         a vehicle other than a vehicle referred to in paragraph (a), means the pilot or other person steering or controlling the movements of that vehicle; or

            (c)         a vessel, means the master as defined by the Western Australian Marine Act 1982 ;

        ecological community has the meaning given in the Biodiversity Conservation Act 2016 section 5(1);

        ecosystem health condition means a condition of the ecosystem which is —

            (a)         relevant to the maintenance of ecological structure, ecological function or ecological process and which requires protection from the effects of emissions or of activities referred to in paragraph (a) or (b) of the definition of environmental harm in section 3A(2); or

            (b)         identified and declared under section 35(2) to be an ecosystem health condition to be protected under an approved policy;

        emission means —

            (a)         discharge of waste; or

            (b)         emission of noise, odour or electromagnetic radiation; or

            (c)         transmission of electromagnetic radiation;

        environment , subject to subsection (2), means living things, their physical, biological and social surroundings, and interactions between all of these;

        environmental harm has the meaning given by section 3A;

        environmental monitoring programme has the meaning given in section 110K;

        environmental protection covenant means an environmental protection covenant entered into and in effect under Part VB;

        environmental protection notice has the meaning given by section 65;

        environmental undertaking means —

            (a)         a biodiversity conservation agreement under the Biodiversity Conservation Act 2016 section 114; or

            (b)         a biodiversity conservation covenant under the Biodiversity Conservation Act 2016 section 122; or

            (c)         a conservation covenant or agreement to reserve under the Soil and Land Conservation Act 1945 section 30B; or

            (d)         an environmental protection covenant; or

            (e)         some other form of binding undertaking to manage land for the protection of the environment;

        environmental value means —

            (a)         a beneficial use; or

            (b)         an ecosystem health condition;

        equipment means any apparatus, appliance, boiler, chimney, crane, device, dredge, engine, facility, fireplace, furnace, generator, incinerator, instrument (including musical instrument), kiln, machine, mechanism, oven, plant, railway locomotive, retort, structure, tool, vehicle or vessel or any other equipment of any kind whatsoever;

        final approval , in relation to a scheme which is —

        [(a), (aa)         deleted]

            (ab)         prepared under the Hope Valley-Wattleup Redevelopment Act 2000 , means an approval under section 15 of that Act, or under section 17 of that Act as read with that section; or

            (b)         prepared under the Swan Valley Planning Act 2020 , means an approval under section 25(2)(a) of that Act; or

            (c)         a region planning scheme, or an amendment to a region planning scheme, means an approval under section 53 or 62, as the case requires, of the Planning and Development Act 2005 ; or

            (d)         a local planning scheme, or an amendment to a local planning scheme, means an approval under section 87(2) of the Planning and Development Act 2005 ; or

            (e)         a State planning policy, or an amendment to a State planning policy, to which regulations made under the Planning and Development Act 2005 section 28(3)(a) apply, means an approval of the policy or amendment by the Governor or responsible Minister under regulations made under section 28(1) of that Act; or

            (ea)         a planning code, or an amendment to a planning code, to which regulations made under the Planning and Development Act 2005 section 32B(3)(a) apply, means an approval of the planning code or amendment by the responsible Minister under regulations made under section 32B(1) of that Act; or

            (f)         an improvement scheme, or an amendment to an improvement scheme, means an approval under the Planning and Development Act 2005 section 87(2), as read with section 122B(1) of that Act; or

            (g)         prepared under the Metropolitan Redevelopment Authority Act 2011 , means an approval given under section 47 of that Act, or under section 49 of that Act as read with that section;

        fuel burning equipment means equipment (other than a motor vehicle) or an open fire in the operation of which fuel or other combustible material is or is to be used or which is or is to be used in or in connection with the burning of fuel or other combustible material;

        implementation conditions has the meaning given in section 44A;

        improvement scheme has the meaning given in the Planning and Development Act 2005 section 4(1);

        industrial plant means equipment —

            (a)         which is used for the manufacturing, processing, handling, transport, storage or disposal of materials in or in connection with any trade, industry or process; or

            (b)         which when operated is capable of an emission; or

            (c)         which is of a prescribed class;

        inspector means a person appointed to be an inspector under section 88, and includes the CEO;

        licence means a licence granted and in force under Part V Division 3;

        licensee means the holder of a licence;

        local planning scheme has the meaning given to that term in the Planning and Development Act 2005 section 4;

        material environmental harm has the meaning given by section 3A;

        materials includes raw materials, materials in the process of manufacture, manufactured materials, by-products and waste;

        Ministerial statement has the meaning given in subsection (1A);

        monitoring programme means all actions taken and equipment used for the purpose of detecting or measuring quantitatively or qualitatively the presence, amount or level of any substance, characteristic, noise, odour, electromagnetic radiation or effect;

        motor vehicle has the meaning given by the Road Traffic (Administration) Act 2008 section 4;

        native vegetation means indigenous aquatic or terrestrial vegetation, and includes dead vegetation unless that dead vegetation is of a class declared by regulation to be excluded from this definition but does not include vegetation in a plantation;

        NEPM means a national environment protection measure within the meaning of the National Environment Protection Council (Western Australia) Act 1996 ;

        noise includes vibration of any frequency, whether transmitted through air or any other physical medium;

        occupier , in relation to —

            (a)         any premises, means a person who is in occupation or control of those premises, whether or not that person is the owner of those premises; or

            (b)         premises different parts of which are occupied by different persons, means, in relation to any such part, a person who is in occupation or control of that part, whether or not that person is the owner of that part;

        owner , in relation to —

            (a)         a vehicle as defined in the Road Traffic (Administration) Act 2008 section 4, has the meaning given by section 5 of that Act; or

            (b)         a vessel, has the meaning given by the Western Australian Marine Act 1982 ;

        period of public review , in relation to a scheme which is —

        [(a), (aa)         deleted]

            (ab)         prepared under the Hope Valley-Wattleup Redevelopment Act 2000 , means the period referred to in section 14(1)(a) of that Act, or in section 17 of that Act as read with that section; or

            (b)         prepared under the Swan Valley Planning Act 2020 , means the period of advertisement for public inspection that applies for the purposes of section 23 of that Act; or

            (c)         a region planning scheme, or an amendment to a region planning scheme, means the period of advertisement for public inspection prescribed for the purposes of the Planning and Development Act 2005 section 43; or

            (d)         a local planning scheme, or an amendment to a local planning scheme, means the period of advertisement for public inspection prescribed for the purposes of section 84 of the Planning and Development Act 2005 ; or

            (e)         a State planning policy, or an amendment to a State planning policy, to which regulations made under the Planning and Development Act 2005 section 28(3)(a) apply, means the period of advertisement for public inspection prescribed under section 28(3)(b)(ii) of that Act; or

            (ea)         a planning code, or an amendment to a planning code, to which regulations made under the Planning and Development Act 2005 section 32B(3)(a) apply, means the period of advertisement for public inspection prescribed under section 32B(3)(b)(ii) of that Act; or

            (f)         an improvement scheme, or an amendment to an improvement scheme, means the period of advertisement for public inspection prescribed for the purposes of the Planning and Development Act 2005 section 84, as read with section 122B(1) of that Act; or

            (g)         prepared under the Metropolitan Redevelopment Authority Act 2011 , means the period set and notified under section 43 of that Act, or under section 49 of that Act as read with that section;

        person includes a public authority;

        planning code means a planning code prepared under the Planning and Development Act 2005 Part 3A;

        planning instrument means —

            (a)         a scheme or a strategy, policy or plan made or adopted under a scheme; or

            (b)         a State planning policy approved under the Planning and Development Act 2005 Part 3; or

            (c)         a local planning strategy made under the Planning and Development Act 2005 ;

        plantation means one or more groups of trees, shrubs or plants intentionally sown, planted or propagated with a view to commercial exploitation;

        pollution has the meaning given by section 3A;

        practicable means reasonably practicable having regard to, among other things, local conditions and circumstances (including costs) and to the current state of technical knowledge;

        practicable means includes provision and maintenance of equipment and proper use of equipment;

        premises means residential, industrial or other premises of any kind whatsoever and includes land, water and equipment;

        prescribed means prescribed by the regulations;

        prescribed premises means premises prescribed for the purposes of Part V;

        prevention notice has the meaning given by section 73A(1);

        proponent , in relation to a proposal, means the person who or which is responsible for the proposal, or the public authority on which the responsibility for the proposal is imposed under another written law;

        proposal means any of the following but not a scheme —

            (a)         a policy, plan or programme;

            (b)         a project, undertaking or development;

            (c)         a change in land use;

            (d)         an amendment of any proposal described in paragraph (a), (b) or (c);

            (e)         an amendment described in paragraph (b) of the definition of significant amendment ;

        proposal under an assessed scheme means an application under the assessed scheme or an Act for the approval of any development or subdivision of any land within the area to which the assessed scheme applies;

        protection , in relation to the environment, includes conservation, preservation, enhancement and management thereof;

        public authority means a Minister of the Crown acting in an official capacity, department of the Government, State agency or instrumentality, local government or other person, whether corporate or not, who or which under the authority of a written law administers or carries on for the benefit of the State, or any district or other part thereof, a social service or public utility;

        public place means a place that is open to the public or is used by the public, whether or not on payment of money or other consideration, whether or not that place is ordinarily so open or used and whether or not the public to whom that place is so open, or by whom that place is so used, consists only of a limited class of persons;

        referred proposal means a proposal referred to the Authority under section 38;

        region planning scheme has the meaning given to that term in the Planning and Development Act 2005 section 4;

        Registrar of Deeds and Transfers has the meaning given in the Registration of Deeds Act 1856 section 2;

        Registrar of Titles means the person designated to be the Registrar of Titles under the Transfer of Land Act 1893 section 7(1);

        regulations means the regulations under section 123(1);

        repealed Act means the Environmental Protection Act 1971 ;

        reserve means land or waters or both reserved by or under a written law for a public purpose;

        responsible authority , in relation to —

            (a)         a scheme which is —

        [(i), (ii)         deleted]

                  (iii)         prepared under the Hope Valley-Wattleup Redevelopment Act 2000 , means the Western Australian Land Authority established by section 5(1) of the Western Australian Land Authority Act 1992 ; or

                  (iv)         prepared under the Swan Valley Planning Act 2020 , means the Western Australian Planning Commission; or

        [(v)         deleted]

                  (vi)         a region planning scheme, or an amendment to a region planning scheme, means the Western Australian Planning Commission; or

                  (vii)         a local planning scheme, or an amendment to a local planning scheme, means the local government which is responsible for the local planning scheme or amendment; or

                  (viii)         a State planning policy, or an amendment to a State planning policy, to which regulations made under the Planning and Development Act 2005 section 28(3)(a) apply, means the Western Australian Planning Commission; or

            (viiia)         a planning code, or an amendment to a planning code, to which regulations made under the Planning and Development Act 2005 section 32B(3)(a) apply, means the Western Australian Planning Commission; or

                  (ix)         an improvement scheme, or an amendment to an improvement scheme, means the Western Australian Planning Commission; or

                  (x)         prepared under the Metropolitan Redevelopment Authority Act 2011 , means the Metropolitan Redevelopment Authority established by that Act;

                or

            (b)         a subdivision which is —

                  (i)         an activity requiring approval under Part 10 Division 2 of the Planning and Development Act 2005 (including a subdivision of land by a community scheme under the Community Titles Act 2018 ); means the Western Australian Planning Commission; or

                  (ii)         a subdivision of land by a strata scheme under the Strata Titles Act 1985 , means the local government within the district of which the subdivision is proposed;

        responsible Minister , in relation to a scheme, means the Minister to whom the administration of the relevant scheme Act is for the time being committed by the Governor;

        road has the meaning given by the Road Traffic (Administration) Act 2008 section 4;

        scheme means —

        [(a), (b)         deleted]

            (c)         a master plan within the meaning of the Hope Valley-Wattleup Redevelopment Act 2000 , or an amendment to such a master plan; or

            (d)         the Swan Valley Planning Scheme, as defined in the Swan Valley Planning Act 2020 section 3, or an amendment of that Scheme; or

        [(e)         deleted]

            (f)         a region planning scheme, or an amendment to a region planning scheme; or

            (g)         a local planning scheme, or an amendment to a local planning scheme; or

            (h)         a State planning policy, or an amendment to a State planning policy, to which regulations made under the Planning and Development Act 2005 section 28(3)(a) apply; or

            (ha)         a planning code, or an amendment to a planning code, to which regulations made under the Planning and Development Act 2005 section 32B(3)(a) apply; or

                  (i)         an improvement scheme or an amendment to an improvement scheme; or

            (j)         a redevelopment scheme prepared under the Metropolitan Redevelopment Authority Act 2011 or an amendment to such a scheme;

        scheme Act means any of the following Acts —

            (a)         the Planning and Development Act 2005 ;

            (b)         the Metropolitan Redevelopment Authority Act 2011 ;

            (c)         the Hope Valley-Wattleup Redevelopment Act 2000 ;

            (d)         the Swan Valley Planning Act 2020 ;

        sell includes —

            (a)         barter, offer or attempt to sell, receive for sale, have in possession for sale, expose for or on sale, send, forward or deliver for sale or cause or permit to be sold or offered for sale; and

            (b)         sell for resale;

        serious environmental harm has the meaning given by section 3A;

        significant amendment , of an approved proposal, means —

            (a)         a proposal that —

                  (i)         is or includes the amendment of an approved proposal; and

                  (ii)         is likely, if implemented, to have a significant effect on the environment;

                or

            (b)         a proposed amendment to implementation conditions relating to an approved proposal if implementation of the proposal under the amended implementation conditions is likely to have a significant detrimental effect on the environment in addition to, or different from, the effect the proposal has in its implementation under the existing implementation conditions;

        State planning policy means a State planning policy prepared under the Planning and Development Act 2005 Part 3;

        Tier 1 offence means —

            (a)         an offence listed in Part 1 of Schedule 1; or

            (b)         an offence declared to be a Tier 1 offence under an approved policy;

        Tier 2 offence means —

            (a)         an offence listed in Part 2 of Schedule 1; or

            (b)         an offence declared to be a Tier 2 offence under an approved policy;

        Tier 3 offence means —

            (a)         an offence listed in Part 3 of Schedule 1; or

            (b)         an offence declared to be a Tier 3 offence under an approved policy;

        trade means a trade, business or undertaking, whether ordinarily carried on at fixed premises or at different places, the carrying on of which results or may result in an emission, and includes an activity prescribed to be a trade, business or undertaking for the purposes of this Act;

        unreasonable noise has the meaning given by subsection (3);

        vegetation conservation notice means a vegetation conservation notice given under section 70;

        vehicle includes a self-propelled vehicle, whether operated on a road or rails or otherwise, aircraft or air-cushion vehicle or rolling stock, trailer, semi-trailer or caravan when attached to such a self-propelled vehicle;

        vessel has the meaning given by the Western Australian Marine Act 1982 ;

        waste includes matter —

            (a)         whether liquid, solid, gaseous or radioactive and whether useful or useless, which is discharged into the environment; or

            (b)         prescribed to be waste;

        waters means any waters whatsoever, whether in the sea or on or under the surface of the land;

        Western Australian Planning Commission means the Western Australian Planning Commission established by the Planning and Development Act 2005 .

        works approval means a works approval granted and in force under Part V Division 3.

        (1A)         A reference in this Act to a Ministerial statement is a reference to —

            (a)         a statement served and published under section 45(8) or under section 45(8) as applied by section 46(8); or

            (b)         a statement published under section 45(8)(b) as applied by section 110(3); or

            (c)         a statement published as required by section 45D(2) or (3); or

            (d)         if it is appropriate in the context, the implementation agreement or decision, as defined in section 44A, set out in a statement mentioned in paragraph (a), (b) or (c).

        (1B)         A reference in this Act to the effect of a proposal on the environment includes a reference to the cumulative effect of impacts of the proposal on the environment.

        (2)         In the case of humans, the reference to social surroundings in the definition of environment in subsection (1) is a reference to aesthetic, cultural, economic and other social surroundings to the extent to which they directly affect or are affected by physical or biological surroundings.

        (2aa)         A reference in this Act to the discharge, emission or transmission of anything (whether accompanied by the expression “into the environment” or not) —

            (a)         is a reference to discharge, emission or transmission onto or into land, water, the atmosphere or living things; and

            (b)         in relation to discharge, emission or transmission from premises, includes a reference to discharge, emission or transmission onto or into land, water, the atmosphere or living things on, in, under, above or part of the premises.

        (2a)         For the purposes of the definition of proposal under an assessed scheme in subsection (1), subdivision means —

            (a)         an activity requiring the approval of the Western Australian Planning Commission under Part 10 Division 2 of the Planning and Development Act 2005 (including a subdivision of land by a community scheme under the Community Titles Act 2018 ); or

            (b)         a subdivision of land by a strata scheme under the Strata Titles Act 1985 .

        (2b)         If a person is for the time being nominated under section 38H(2) as being responsible for a proposal that person is to be regarded, for the purposes of the definition of proponent in subsection (1), as the person responsible for the proposal.

        (3)         For the purposes of this Act, noise is to be taken to be unreasonable if —

            (a)         it is emitted, or the equipment emitting it is used, in contravention of —

                  (i)         this Act; or

                  (ii)         any subsidiary legislation made under this Act; or

                  (iii)         any requirement or permission (by whatever name called) made or given by or under this Act;

                or

            (b)         having regard to the nature and duration of the noise emissions, the frequency of similar noise emissions from the same source (or a source under the control of the same person or persons) and the time of day at which the noise is emitted, the noise unreasonably interferes with the health, welfare, convenience, comfort or amenity of any person; or

            (c)         it is prescribed to be unreasonable for the purposes of this Act.

        (3a)         A reference in this Act to the amendment or changing of implementation conditions is a reference to —

            (a)         varying, removing or adding implementation conditions; or

            (b)         inserting implementation conditions where none existed.

        (4)         A reference in this Act to amending a clearing permit, works approval or licence includes a reference to revoking or amending any condition to which the clearing permit, works approval or licence is subject and to making the clearing permit, works approval or licence subject to a new condition.

        [Section 3 amended: No. 113 of 1987 s. 32; No. 34 of 1993 s. 4; No. 84 of 1994 s. 46; No. 14 of 1996 s. 4; No. 23 of 1996 s. 12; No. 50 of 1996 s. 8; No. 14 of 1998 s. 4, 23 and 28; No. 38 of 1999 s. 71(2); No. 77 of 2000 s. 37(2); No. 25 of 2001 s. 69; No. 54 of 2003 s. 4, 28, 69, 98, 105, 109, 121 and 140(1); No. 60 of 2003 s. 100; No. 38 of 2005 s. 15; No. 36 of 2007 s. 100; No. 8 of 2009 s. 53; No. 28 of 2010 s. 25; No. 45 of 2011 s. 137(2)-(6); No. 8 of 2012 s. 100; No. 30 of 2018 s. 138; No. 32 of 2018 s. 210; No. 40 of 2020 s. 4(1), (3), (5)-(9) and 111(1); No. 45 of 2020 s. 102; No. 26 of 2020 s. 55 and 68; No. 34 of 2023 s. 25.]