Powers and notices guideline for authorised officers and enforcement officers

The final Powers and Notices Guideline for Authorised Officers and Enforcement Officers (PDF 756KB) has been released.

This new guideline replaces the previous EPA guides Powers of Authorised Officers 2006 and the Guide to Notices 2009.

The new guideline includes additional or changed content in response to feedback from councils, other regulatory authorities and relevant agencies and their officers where possible and appropriate.

It aims to help relevant officers to consistently and lawfully use their powers under the POEO Act and guide officers undertaking regulatory functions under environment protection legislation. It provides

  • additional detail to guide officers undertaking regulatory functions
  • summaries of relevant case law and other examples

Draft notice templates for common notice types that an officer or a regulatory authority may use are also available and will be finalised later in 2021.

We are also considering how we can offer support by addressing the topics in the feedback we received.

For information about our response to your feedback and the development of the guideline contact operational.guidance@epa.nsw.gov.au

Feedback on the draft guideline and templates

The consultation period closed in March 2020.

The EPA considered the feedback we received on the draft guideline and notice templates.  The notice templates will follow the release of the final guideline.  

You may want to refer to the draft notice templates to check the EPA’s response to your feedback.

Feedback was invited from all NSW Councils (with an engagement rate of 57%), individual local government representatives (engagement rate of 37%) and other agencies (engagement rate of 71%). We received 52 individual submissions via either the survey or email.

Overall feedback on the guideline was very positive. The majority of respondents recognised the advantages of combining the topics from the two older guides and thought the guideline sufficiently outlined key concepts, was more comprehensive, and provided useful additional guidance and examples.

Some respondents asked for further details on powers and actions, and for examples and case studies. Where possible, we are making changes to the final Guideline to provide more clarification or are considering the development of additional companion resources.

Where more specific information was requested that depends on the individual circumstances of a matter we have not included it in the Guideline. The Guideline is intended to provide general information and not to substitute where legal advice may be required.

EPA’s response to feedback

Issue or theme Comments** EPA response

Format of the guideline

Most comments suggested it was easy to find what was needed and it was well set out.

Format will remain unchanged in final guideline.

Some proposed there could be links to relevant sections and appendices of the guideline.

Under consideration.

Notices

‘reasonable’ suspicion

Requests for further clarification on 'reasonable' suspicion regarding issuing a clean-up notice.

Additional case study will be provided in final guideline.

Clean -up vs prevention notices

Further clarification on the issuing of clean up vs prevention notices, and if both could be issued at one time.

A summary comparison between a clean-up notice and a prevention notice is provided in Appendix B to the guideline.

Please see 4.5.2 of the guideline about issuing multiple notices.

Issuing notices

Requests for further information on preparing and issuing notices

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.

Continuing effect of notices

Councils asked if a notice continues to have effect following an enforcement action or is a new notice required?

This issue will depend on specific circumstances and ARAs and officers should seek their own legal advice.

Procedural fairness

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?

See s4.3 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.

Powers

Powers of entry under s201 of POEO Act

Requests for further details on WHS considerations when using powers of entry

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.

Requests for further details on what constitutes residential premises.

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.

Requests for further details on reasonable use of force.

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.

Powers to enter land under s111 of the POEO Act

Request for details on this power in the guideline.

Information on s111 will be included in the final guideline.

Limitation of powers

The guideline does not explicitly talk about limitations of powers under the POEO Act.

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.

Investigations and interviews

Interviews – cautioning for voluntary responses

Requests for more detailed guidance on interviewing techniques and the proper usage of caution for voluntary interviews.

Please see s 2.6.1 of the guideline for when to caution.

 

 

Investigation techniques

More examples of techniques requested.

Under consideration

NSW Food Authority has a good model for assisting Councils with investigations.

Under consideration.

 

 

Appropriate regulatory authority (ARA)

Determining the ARA

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.

Section 6 of the Protection 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.

Enforcement officers can issue Penalty Notices under the POEO Act

Public authorities

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 PN?

Hunter Water, Sydney Water and Councils are each defined as a 'sewage authority' under the POEO General 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 the Local Government Act 1993 or 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.

Notice templates

Format of the notice templates

Request for notice templates be “pre-filled”.

We are considering how to make the notice templates more user friendly.

Request for notice templates to be in an “approved” format that does not allow the intent to be changed.

The templates will be provided as guidance only. You may need to seek legal advice about individual circumstances.

Request for notice templates to be plain English with a clear and concise format to improve readability.

Under consideration

Examples of notices

Every circumstance is different but an indication of what level of action is reasonable and how it is requested - officers would find examples helpful

Under consideration

** Similar comments we received have been grouped together

Training can help build capacity of investigation skills and techniques. The EPA have several online courses available and will soon recommence in-person training courses on a range of practices to enhance officers’ regulation skills and knowledge. Officers can register on the NSW EPA Learning website and enrol in courses directly. The courses available will be updated regularly. See EPA Learning.

Requests for additional companion materials included case studies, examples or additional information about the following:

  • Residential premises
  • Summaries of relevant case law and their relevant messages separate to the guideline that can be updated from time to time, including unsuccessful cases
  • Appropriate regulatory authorities
  • Correct legal entities
  • Authorisation vs delegation
  • WHS relating to using powers
  • Investigations
  • Examples of enforcement officers using powers
  • Powers to require answers and interview techniques
  • Templates for statements (e.g. witness statements)
  • Responding to illegal dumping, kerbside dumping, and dumping at multi-unit dwellings
  • Asbestos dumping
  • Offensive noise for local councils – air conditioners, garbage collection
  • Sediment and erosion
  • Water pollution
  • Stormwater runoff
  • Grease trap overflow
  • Air pollution/dust
  • Odour
  • Chain of custody/evidence register
  • Photographic log
  • Complaints regarding works undertaken by state agencies (e.g. Ausgrid, telecommunications, RMS, Sydney Water)

 
We are considering the development of additional companion materials.

For further information about our response to your feedback received and the development of the guideline please contact operational.guidance@epa.nsw.gov.au.

Note: No representation is made about the accuracy, completeness or suitability of the information in the guideline, notice templates or any further companion materials yet to be developed for any particular purpose. Compliance with the guideline, notice templates or further companion materials may not be possible or appropriate in particular cases. Readers should not rely on the guideline, notice templates or further companion materials as indicating the procedure that appropriate regulatory authorities, authorised officers and enforcement officers will follow in all cases. Readers should seek appropriate advice, including their own legal advice, when applying the information to their specific needs.

Summary of feedback received in 2018 about the two previous EPA guides 

The EPA received 126 responses to the survey, with 91% (115) coming from local councils. Authorised officers made up 85.7% (108) of respondents, and 73.1% of those had been authorised for five years or more. Enforcement officers under the POEO Act made up 58.7% (74) of respondents.

Approximately 50% of respondents used the Guide to Notices, 37% used other EPA guidance material and 36% used the Powers of Authorised Officers guide. See below for the EPA’s response to the issues raised by survey respondents.
Respondents provided valuable information that has helped the EPA improve the content of the new draft guideline.

Respondents requested

EPA response

Information on court cases, case studies on pollution incidents (e.g. water pollution, illegal dumping), how to distinguish between what the EPA is responsible for under the POEO Act and what is delegated to councils.

Relevant case law and information on delegations is included in the draft guideline.

The EPA is proposing to develop case studies on pollution incidents as separate guidance.

Educational material and fact sheets to hand out to businesses about their POEO Act obligations.

The EPA is proposing to develop an additional companion product for this purpose.

Notice templates that can be downloaded and edited.

 

The EPA is proposing to provide notice templates as companion products to the guideline.

 

The survey included several open questions that sought advice from regulators. A summary of survey feedback and the EPA’s responses are provided below.

Questions 6 & 7: Would the following be helpful information to include in the updated guideline?

Information

% Yes

EPA response

Notice templates

89%

The EPA is proposing to provide notice templates as companion products to the guideline.

Case studies

70%

The EPA is proposing to develop case studies on pollution incidents as separate guidance.

Legal cases

70%

Relevant case law is included in the draft guideline.

Web friendly format

73%

To be addressed, where possible, at time of publication.

Smoke abatement notices

74%

The link below is referred to in the draft guideline. See the example and information at: https://www.epa.nsw.gov.au/your-environment/air/reducing-wood-smoke-emissions/council-resource-kit/smoke-abatement-notices

Noise control notices

90%

The EPA will consider reviewing the Noise Guide for Local Government, including noise control notices.

Noise abatement notices

83%

As above.

Powers to disable noisy alarms

60%

Any review of the Noise Guide for Local Government is likely to address powers to disable noisy alarms.


Question 8 & 10:
Additional information that should be included in the guideline or other feedback.

Submission request / issue

EPA response

Link to other guidance documents

Embedded throughout document.

Provide examples of standard directions
for notices

The EPA is proposing to provide notice templates, but not standard conditions, which need to be matter-specific.

How to win court cases

The draft guideline provides information on acting lawfully and within powers and on collecting evidence. Detailed training on investigations and collecting evidence is also available https://learning.epa.nsw.gov.au/login/index.php

Public fact sheet about authorised officers

The EPA is proposing to develop an additional companion product for this purpose.

Guide on residential premises

Included in the draft guideline.

Review use of clean-up notices for solid household waste

The EPA is considering preparing a case study as a companion product to the guideline.

Detailed guidance on using the POEO Act
for asbestos

Guidance on powers, notices and regulatory actions apply to any other matter being investigated.

Clearer guidance around appropriate
regulatory authority

Included in draft guideline. The EPA is also considering developing additional companion guidance on this issue.

Procedural fairness

Included in draft guideline.

Service of notices and legal entity

Included in draft guideline.

Make documents shorter

Combined guideline reduces overall length.

Easy to search web version

To be considered and addressed at time of publication.

Investigation techniques, negotiation skills; contemporaneous note taking; interviewing

Covered briefly in guideline. Detailed training is available https://learning.epa.nsw.gov.au/login/index.php.

The requirements regarding timeframes for notices and orders

Included in draft guideline.

Examples of more types of notices with references to current legislation

A table of notices is included as an appendix in the draft guideline.

Help drafting notices

Included in draft guideline. Detailed training is available https://learning.epa.nsw.gov.au/login/index.php.

Information on interviewing and cautioning

Included in draft guideline. Detailed training is available https://learning.epa.nsw.gov.au/login/index.php.

Who to take action against

Throughout guideline.

Issuing multiple notices for the same issue

Included in draft guideline.

Regulatory responses

Included in draft guideline.

Case law

Included in draft guideline.

Draft terms of reoccurring offences, e.g. illegal dumping of waste, water pollution clean-up

The EPA needs more information on the gaps that need to be addressed; some case studies will be developed as companion products to the guideline.

More technical information

The EPA needs more information on the gaps that need to be addressed. Training in some technical matters is already provided by the EPA.

More info and courses on the Environmental Planning and Assessment Act 1997

Outside scope of the guideline - request referred to the EPA’s Learning and Regulatory Capabilities Unit.

Additional training in odour assessment

Outside scope of the guideline – feedback being considered by EPA Learning and Regulatory Capabilities Unit and relevant EPA staff.

Environmental Management Plan templates / guidelines for a range of industries

Outside scope of the guideline.

Advice to councils on who should have what powers under each piece of legislation

Outside scope of EPA responsibility.

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