Powers and notices guideline for authorised officers and enforcement officers

The EPA has combined the Powers of Authorised Officers 2006 (PDF 316KB) and the Guide to Notices 2009 (PDF 234KB) into a single draft Powers and Notices Guideline for Authorised Officers and Enforcement Officers (PDF 775KB) and this includes feedback received from a survey to councils and other regulatory authorities in 2018 where appropriate (see below).

This guideline 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
  • Notice templates for common notice types that an officer or a regulatory authority may use

We would like you to let us know if the new guideline and templates meet your needs

The draft Powers and Notices Guideline for Authorised Officers and Enforcement Officers and draft notice templates are provided below

The draft templates are provided here in PDF for comment only. When finalised the notice templates will be user friendly. 

Your feedback can be provided by a short survey at https://www.surveymonkey.com/r/DW9LL38 which has evaluation questions on the draft guideline

or

You can send your feedback via email to operational.guidance@epa.nsw.gov.au

The consultation period closed on the 13 March 2020.

The EPA is considering the feedback we received on the draft guideline and notice templates. We will soon release a summary of the feedback received.

Next steps

The EPA aims to release the final guideline with finalised notice templates in mid to late 2020. Further companion materials may also be developed after this time.

Powers of Authorised Officers and Guide to Notices

The current operational documents that support authorised officers and enforcement officers who exercise regulatory functions under the  Protection of the Environment Operations Act 1997 (POEO Act) and other environment protection legislation are the Powers of Authorised Officers 2006 (PDF 316KB) and the Guide to Notices 2009 (PDF 234KB).

The EPA reviewed these guidelines aiming to update the information to reflect current case law, legislation, policy and agency information as well as meet the needs of those who use them. They have been combined into a new draft guideline (see above).

In 2018, feedback was sought from councils and other regulatory authorities to inform the review via an online survey. A summary of the feedback received is provided below.

Summary of feedback received in 2018 about the two current 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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