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Format of the guideline
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Most comments suggested it was easy to find what was needed and it was well set out.
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Format will remain unchanged in final guideline.
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Some proposed there could be links to relevant sections and appendices of the guideline.
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Under consideration.
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Notices
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‘reasonable’ suspicion
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Requests for further clarification on 'reasonable' suspicion regarding issuing a clean-up notice.
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Additional case study will be provided in final guideline.
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Clean -up vs prevention notices
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Further clarification on the issuing of clean up vs prevention notices, and if both could be issued at one time.
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A summary comparison between a clean-up notice and a prevention notice is provided in Appendix B to the guideline.
Please see section 4.5.2 of the guideline about issuing multiple notices.
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Issuing notices
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Requests for further information on preparing and issuing notices
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Issuing a notice to the correct legal entity is covered in section 4.2 of the guideline. Detail on issuing notices can be found in section 4.4 and serving a notice in section 4.6.
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Continuing effect of notices
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Councils asked if a notice continues to have effect following an enforcement action or is a new notice required?
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This issue will depend on specific circumstances and ARAs and officers should seek their own legal advice.
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Procedural fairness
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What are the circumstances where you need to provide procedural fairness in terms of issuing a draft clean up direction prior to issuing the actual notice?
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See section 4.3 of the guideline.
As each circumstance is different, it is not possible to provide detailed advice on how procedural fairness should be applied or the timeframes needed. ARAs and officers should seek legal advice on the extent of their procedural fairness obligations when issuing notices which impact on a person’s interests.
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Powers
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Powers of entry under s201 of POEO Act
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Requests for further details on WHS considerations when using powers of entry.
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Officers considering using powers of entry should always consider WHS requirements under legislation and follow their organisational policies and procedures. In situations where officers believe there may be a risk to their personal safety it may be appropriate to request the assistance of the police or other agency such as Fire and Rescue NSW.
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Requests for further details on what constitutes residential premises.
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The POEO Act is not prescriptive in its definition of a 'residential premises'. In circumstances where it is unclear, officers should obtain legal advice before entering.
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Requests for further details on reasonable use of force.
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As per section 2.3.2 of the guideline and section 201 of the POEO Act, you may use reasonable force when exercising powers of entry and search. What is reasonable force will always depend on the circumstances. There is no case law considering reasonable force in the context of the POEO Act.
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Powers to enter land under s111 of the POEO Act
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Request for details on this power in the guideline.
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Information on s111 will be included in the final guideline.
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Limitation of powers
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The guideline does not explicitly talk about limitations of powers under the POEO Act.
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The POEO Act provides detailed information on powers that may be exercised by the Appropriate Regulatory Authority, authorised officers and enforcement officers. The Act defines when, where, and how powers can be used. The Powers and Notices Guideline aims to help officers better understand the Act and ensure they utilise their powers within the limits of the law.
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Investigations and interviews
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Interviews – cautioning for voluntary responses
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Requests for more detailed guidance on interviewing techniques and the proper usage of caution for voluntary interviews.
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Please see s 2.6.1 of the guideline for when to caution.
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Investigation techniques
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More examples of techniques requested.
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Under consideration
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NSW Food Authority has a good model for assisting Councils with investigations.
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Under consideration.
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Appropriate regulatory authority (ARA)
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Determining the ARA
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Request further clarification on whether the EPA or Council is the ARA for certain public corporations, including federal agencies and corporations other than obvious state authorities.
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Section 6 of theProtection of the Environment Operations Act 1997(the Act) and Chapter 7 Part 1 of the Protection of the Environment Operations (General) Regulation 2009 (the Regulation) set out who is the ARA for various matters. For the purposes of the Act, the EPA is the ARA in relation to activities carried on by a state-owned corporation. State-owned corporations are considered public authorities under the Act. Legal advice may be required when dealing with a Federal public authority or Commonwealth owned corporation.
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Enforcement officers can issue Penalty Notices under the POEO Act
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Public authorities
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It appears that sewage authorities may be responsible for investigating and issuing penalty notices for discharge of pollutants into a sewer within their area of its operations. What happens if a scheduled premises discharges to a sewer? Would EPA lead the investigation and Hunter Water issue a penalty notice?
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Hunter Water, Sydney Water and Councils are each defined as a 'sewage authority' under the Regulation (s56 (3)).
We note the sewage authority is primarily responsible for its sewers. It is generally appropriate for the sewage authority to take action about matters such as inappropriate trade waste disposal, including using its powers in theLocal Government Act 1993or other applicable legislation.
It will depend on the circumstances of each case. It is recommended you seek legal advice.
The EPA is the ARA for scheduled premises. If the EPA becomes aware of issues at a scheduled premises, it will work with all relevant parties to resolve the issue.
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Notice templates
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Format of the notice templates
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Request for notice templates be “pre-filled”.
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We are considering how to make the notice templates more user friendly.
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Request for notice templates to be in an “approved” format that does not allow the intent to be changed.
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The templates will be provided as guidance only. You may need to seek legal advice about individual circumstances.
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Request for notice templates to be plain English with a clear and concise format to improve readability.
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Under consideration.
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Examples of notices
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Every circumstance is different but an indication of what level of action is reasonable and how it is requested - officers would find examples helpful.
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Under consideration.
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