Australia: NSW Court of Appeal limits the scope of EPA powers to issue statutory notices

Summary

On 6 September 2011, Campbell JA, Young JA and Sackville AJA delivered their judgment in the NSW Court of Appeal in D'Anastasi v Environment, Climate Change & Water NSW [2011] NSWCA 374. The judgment allowed the appeal from the Land and Environment Court in the previous proceedings of D'Anastasi v Environment Protection Authority [2010] NSWLEC 260 (earlier proceedings).

The case provides guidance on the scope of a regulatory authority's power, including the power of the Environment Protection Authority's (EPA), to issue statutory notices under the Protection of the Environment Operations Act 1997 (POEO Act). Further, it demonstrates the importance of considering your rights and obligations under environmental protection legislations such as the POEO Act, before responding to notices.

Facts and background

D'Anastasi (Applicant) was involved in the management of three properties in Glenorie, north-west of Sydney, which were the subject of reports of the dead birds. As part of its investigations, the Department of Environment Climate Change and Water (DECCW)¹ issued a statutory notice to the Applicant to provide information and/or records under section 193 of the POEO Act.

The notice contained 54 questions and required a range of information to be provided including information concerning all persons involved in management of the properties, all visitors to the properties, the purpose of each visit, pests present and the management of those pests such as pesticide use over specified time periods.

In the earlier proceedings the Applicant challenged the notice issued by the DECCW. Relying on powers under section 193 of the POEO Act, the notice sought information and records as part of its investigation into the potential misuse of pesticides, following a report of dead birds to the DECCW on the relevant land. Justice Pain's judgment in the Land and Environment Court dismissed the Applicant's challenge to the notice.

Decision of the Court

The Court of Appeal overturned the decision of Pain J and held that the notice was invalid as it did not comply with the requirements of section 193 of the POEO Act. In particular, it did not identify the "matter" that the notice was issued in connection with, as well as containing questions that were beyond those allowed by the POEO Act. On the extent of enquiries that the recipient of a notice can be required to make, the decision of Sackville J suggested that notices should not require the recipient to make enquiries of third parties with whom that recipient has no relevant association.  

This case also provides guidance on the procedural requirements for issuing notices. Whilst the POEO Act does not require giving a notice of an intention to issue a notice or specify a particular form that a notice must require, Young JA recommended that "government authorities seeking to use the notice procedure ensure that they not only issue notices that comply with the principles of Administrative Law, but seek to make them as brief as practicable."²

Requirements for notices

The Court found that section 193 of the POEO Act requires a notice to identify the "matter" within the responsibilities and functions of the regulatory authority that the information is being sought. In identifying the "matter" to the recipient, the notice "must go beyond a mere assertion that it constitutes or may constitute a contravention of some identified section. It must disclose the necessary relationship between the information sought and the matter in respect to which it is sought".³ Further, the "matter" must not be defined "too widely"⁴ in order to be valid.

Information and knowledge of recipients

Clarification was also provided on the information that may be required and the extent of enquiries recipients of notices can be required to make. The Court held that the notice can request information held by the addressee and it is irrelevant that the authorised officer may have the same information⁵.  

Young JA relied on Dunlop Olympic Ltd v Trade Practices Commission (1982) 40 ALR 367 and the "common sense" view to confirm that notices under the POEO Act can require the recipient to make enquiries in order to provide the requested information but cannot ordinarily require recipients to make extensive enquiries of others and "act as a detective". The enquiries that can validly be required, include enquiries for information which might be reasonably attained, such as information contained in a computer or filing system or general knowledge of employees. Young JA also reaffirmed that if a recipient was unable to provide the information requested, it would not make the notice invalid.⁶

Additionally, Sackville AJA confirmed that notices cannot require the recipient to make enquiries of third parties with whom that recipient has no relevant association. This judgment applies the example of an employer-employee relationship.

Implications

This case provides clarification on the scope of power of authorised officers to issue notices requiring information and records to be provided under the POEO Act. The notice must identify the matter within the responsibilities and functions of the regulatory authority that the information and records are connected to. This means that notices must provide a sufficient description of the matter. Notices must also be clear and cannot request information that is too wide-ranging.  

Also, recipients of notices may no longer be expected to seek requested information from sources other than their own knowledge. This applies specifically to third parties with whom the recipient has no relevant association. Instead, a "common sense" view should be applied, which may include a review of records and reviewing any sources where that information may be provided. It may be sufficient to respond on the basis that the recipient does not have all of the information requested.  

In summary, the EPA and other regulatory authorities have broad investigative powers under the POEO Act including the power to issue statutory notices, for the purpose of determining whether there has been a contravention of the Act and generally for protecting the environment. These powers have the potential to significantly affect the rights of companies and individuals. It is therefore recommended that before responding to a statutory notice, you consider your rights and obligations and seek legal advice, as required.

Footnotes

¹now known as the Office of Environment and Heritage, which is responsible for administering the EPA.

²At [100]

³SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357

⁴Emirates v ACCC [2009] FCA 312; 255 ALR 35; 44 [30]; Seven Network Ltd v ACCC [2004] FCAFC 267; 140 FCR 170, 182-3 [49]

⁵at [62]

⁶Pyneboard Pty Ltd v Trade Practises Commission (1982) 57 FLR 376; 39 ALR 571

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.