State and Local Government authorities across the State have power to issue a variety of orders that are often used in the context of planning and environmental issues. Orders can involve requiring someone to refrain from doing something (e.g. cease use of a premises), as well as compelling someone to do something (e.g. repair a building). These orders can be issued in a variety of circumstances (e.g. where public health and safety is at risk, or there is a threat of environmental harm) and can be served to various categories of people (e.g. owners, occupiers, managers, or people engaged in a particular activity). Various statutes empower authorities to issue orders, and these statutes provide such authorities with an extensive set of powers to compel people to do or not do something.
Legislation varies as to the steps that must be undertaken before an order is issued. In this regard, some legislation prescribes a set of preconditions to the issue of orders, whereas other legislation is less prescriptive. This is interwoven with common law requirements when issuing orders, including the requirement for natural justice.
The Lismore City Council v Ihalainen case provides a number of salient lessons in the way orders are issued and drafted, in particular:
- Keep them clean – if an order is being issued under one Act, then the order should not blur its content with matters under another Act.
- Harmonise actions with the significance of the issue at hand – an authority’s actions should be consistent with what is being alleged – if there is an immediate threat of environmental harm, then deal with this threat proportionately.
- Give people a chance – if possible, issue a notice of intention to issue an order, rather than serving the Order without notice.
- One size does not fit all – the dictates of procedural fairness vary from situation to situation.
The nub of it
The case involved a developer appealing to the Court to dismiss a number of charges brought by Lismore City Council for the failure to comply with a clean-up notice under the Protection of the Environment Operations Act 1997 (POEO Act). The developer claimed the Council had failed to provide procedural fairness, as Council had not given notice of the proposed clean-up before it was issued. The developer said the Council had failed to provide procedural fairness as no notice of the second clean-up was given and such notice should have been given in the circumstances. The developer ‘s position was that there was no imminent risk of a pollution incident that would justify the issue of such an extensive clean-up notice (requiring a large amount of fill to be removed which was very expensive to undertake) without any consultation about its contents. Further, the developer said that the discussions with Council officers at an on-site meeting indicated the Council did not perceive the works to be an incident which posed any serious or immediate threat of environment harm.
Notices under the POEO Act
Clean-up notices are intended for urgent and/or prompt measures necessary to avoid pollution occurring or the imminent likelihood of pollution occurring. No appeal mechanisms exist against a notice under the POEO Act and there is no statutory right to be consulted before one is issued. The notice is administrative in nature and affects the rights of the recipient. A failure to comply can give rise to an offence under the POEO Act.
Justice Pain held that the Council had failed to provide procedural fairness, and notice of the second clean-up notice should have been provided.
Key factors leading to Justice Pain’s decision were:
- The fact that the Council had not taken immediate action following a rainfall event. This suggested that the Council officers perceived no immediate threat of material environmental harm which would have supported issuing the second clean-up notice without notice.
- Whilst the Council had detailed discussions about the clean-up actions required on the site with the developer and his consultants, the works required by the clean-up notice were more extensive than those discussed.
- The work required by the second clean-up notice was substantial. These works would require the developer to engage at least one expert and would require the application of a number of lengthy policy documents.
- Some of the actions required by the clean-up notice related to compliance with the development consent under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), and therefore were not appropriate matters to be included in a clean-up notice under the POEO Act. The Court did acknowledge that a blurred notice (covering matters under multiple Acts) might be valid if the measures under the other Act were “inextricably bound up with achieving that outcome – preventing actual or imminent pollution”.
Interestingly, Justice Pain commented that had the notice been confined to sediment and erosion control measures only, it may have been reasonable to have served the clean-up notice without notice. This was because of the possibility of water pollution occurring from sediment runoff, if a further rainfall event occurred.
The wash up
Natural justice, also known as procedural fairness, is a fundamental principle for discharging regulatory duties. Government authorities should carry out their investigative and enforcement functions having regard to the principles of natural justice which include:
- Providing a fair hearing – allowing a person whose interests may be adversely affected by a decision to present their case. This includes giving a person on whom a notice is served the opportunity to respond to the notice.
- Impartiality in the decision-making process – officers are to be unbiased and not hold a vested interest in the outcome of a process.
- Decisions based on evidence – decisions must be based on the evidence provided, not on irrelevant issues, and there must be a rational basis upon which the decision maker has decided to accept the evidence as credible.
- Acting in good faith.
This case centred in on the first dot point. Her honour clearly stated that there is a duty to afford procedural fairness, meaning a right to be heard, when a clean-up notice under the POEO Act is contemplated by a regulatory authority. Referring to a number of earlier seminal decisions on procedural fairness, Her Honour stated:
…statutory authority exercising a power which affects the rights of a person is bound to hear that person before exercising the power is fundamental.
Her Honour went on to conclude that “whether procedural fairness has been afforded to the Defendant depends on the particular circumstances before the Court”. In this regard, her Honour referred to previous judgments of the Court where procedural fairness had or had not been accorded in the context of clean up notices, and concluded: “This case, not surprisingly, is different again”.
The factors mentioned earlier, provide guidance on tailoring procedural fairness to the circumstances at hand. But if procedural fairness is not properly tailored to the circumstances at hand, then there is a risk that an order could be challenged and declared not to have been issued legally.
Cecilia Rose, Special Counsel
Todd Neal, Senior Associate