Essential Guide to Local Government Law: Prevention Notices and "Reasonable Suspicion"

The Protection of the Environment Operations Act 1997 (POEO Act) provides for the issue of a range of notices, collectively referred to as ‘environment protection notices’.[1] These notices are an important regulatory tool for councils and their use will often require an appreciation of the statutory terms and legal concepts that underpin them to ensure they are enforceable. Previous court judgments illustrate how specific terms have been construed by the courts and how the relevant legal concepts have been applied. 

This Essential Guide discusses the concept of “reasonable suspicion” under the POEO Act as it applies to the giving of a prevention notice in the context of a pollution issue.

When can a council issue a prevention notice?

Focusing as it does on pollution prevention and control, the POEO Act provides that a council, or other appropriate regulatory authority, may issue a prevention notice when it “reasonably suspects” that an activity has been or is being carried on in an environmentally unsatisfactory manner, at any place, by any person.[2]

Before giving a prevention notice, or any of the other notices requiring a “reasonable suspicion” under the POEO Act; it is crucial for a council to consider whether they can establish that they have the requisite “reasonable suspicion”.

What is a “reasonable suspicion”?

The cases that that have considered the concept of “reasonable suspicion” for the purposes of the POEO Act have described this pre-condition as being partly subjective and partly objective. The ‘subjective criterion is the mental state of suspicion as to the existence of the required state of affairs and the objective criterion is whether the suspicion is reasonable’.[3]

In Kempsey Shire Council v Slade,[4] Biscoe J summarised the test for establishing “reasonable suspicion” as follows:[5]

  1. The public authority must have formed a genuine suspicion that a particular person (or persons) caused the pollution incident.
  2. A reasonable suspicion involves less than a reasonable belief but more than a possibility.
  3. The public authority’s suspicion must be reasonable in that there is some objective and factual basis for the suspicion, which would create in the mind of a reasonable person in the position of the public authority figure an apprehension that the person caused the pollution incident to which the [notice] relates. A reasonable suspicion may be based on hearsay material or material that is inadmissible in evidence but it must have some probative value.
  4. The objective circumstances do not have to establish, on the balance of probabilities, that the person in fact caused the pollution incident nor that there has in fact been a pollution incident.

This two-part approach to “reasonable suspicion” commences with establishing that a suspicion has been formed.

The Subjective element

While there must be an ‘objective and factual basis’[6] for the suspicion, the suspicion itself is a subjective state of mind. Less proof is required to form the suspicion than is needed to create a belief. In establishing the test in Kempsey, Biscoe J referenced the common law principles citing Lord Devlin in Hussein v Chong Fook Kam[7] where his Lordship stated, ‘the facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown’.[8] Additionally, Kitto J, in Queensland Bacon Pty Ltd v Rees,[9] is cited in Kempsey as saying ‘[a] suspicion … is more than a mere idle wondering…; it is a positive feeling of actual apprehension or mistrust…’.[10]

The Objective element

Having formed the suspicion, the question as to whether it is reasonable is an objective test. To determine whether the suspicion is reasonable the Court applies what Biscoe J described in Kempsey as the “reasonable person test”: would a reasonable person in the position of the public authority, confronted with the same facts, suspect that the person in question has caused, or could cause, a pollution incident? If so, the suspicion is reasonable.

The facts to be applied in applying the reasonable person test will be context specific. For a pollution issue this may include establishing that a pollution incident has occurred or was likely to occur through one or more documented site inspections observing pollution or a set of circumstances that could give rise to a pollution incident.  Additionally, other specific and documented investigations could also be used to evidence that a suspicion is reasonable.

Hossein Yamini v The Council of the City of Sydney

The recent decision of the Land and Environment Court in Hossein Yamini v The Council of the City of Sydney[11] re-affirmed the Kempsey test. While unsuccessful on other grounds, the Council successfully argued that a prevention notice it had issued was within power because the Council had formed the requisite “reasonable suspicion”.

Mr Yamini contended, unsuccessfully, that the Council could not possibly have formed the reasonable suspicion that an environmentally unsatisfactory activity was taking place, either at his premises or by him. Mr Yamini submitted ‘that the reasonable suspicion the Council was required to have related to current and not future actions’[12] for the prevention notice to be within power. The Council successfully argued that its knowledge of past events gave rise to the suspicion that a pollution incident may re-occur in the future and that in light of those past events such a suspicion was reasonable. The Council submitted that the prevention notice relied on past events to give rise to the suspicion that a pipe leak might re-occur and their prevention notice sought to ensure the source of the leak had been appropriately treated so that the same event did not occur in the future. It did so by reciting ‘the past events comprising the escape of waste water from the premises and that the rectification of that leak was, contrary to the requirements of …[an earlier]… Clean-up Notice, not undertaken by a licensed plumber, but by a combination of clean up works by the Appellant and plumbing work by a licensed air conditioning plumber’.[13]  

Duggan J applied the Kempsey test in Yamini, accepting the Council’s prevention notice as evidence of the factual basis for the suspicion.  Her Honour considered that the notice was ‘directed to a future risk’ and identified ‘past events comprising the escape of waste water from the premises’.[14] Her Honour further noted that attempts to rectify the leak were not conducted by a licensed plumber as required by the Clean-up notice and stated that:

‘In the circumstances, those past actions are sufficient to give rise to a reasonable suspicion that the escape of waste water may occur again if the repairs were not appropriately carried out.’[15]

Referencing the Kempsey test, her Honour also noted that the belief that the event may happen again due to the poor repair work was ‘on the evidence more than a possibility’.[16] Her Honour considered that the suspicion held by the Council was ‘reasonable in the circumstances as it is based upon an objective factual basis which would create in the mind of a reasonable person an apprehension that the Leak may re-occur and waste water may leave the premises by the same route as had previously occurred’.[17]

Before giving a prevention notice

If you are unsure whether you have the necessary “reasonable suspicion” to give a prevention notice under the POEO Act, consider the Kempsey test. The two-part description of “reasonable suspicion” established by Biscoe J in Kempsey is a useful tool to ensure your inspections and/or investigations are directed at establishing the requisite objective evidence to support the subjective suspicion that has brought the matter to your attention in the first place. When drafting notices, councils should also include the reasonable grounds on which they suspect that a pollution incident has occurred or is likely to occur.

Setting out, in the prevention notice itself, details of what the Council suspects has happened, and why, will help to establish the reasonable suspicion on which the prevention notice is based and will assist the Council to ensure that the prevention notice is not liable to be set aside on the ground that the requisite “reasonable suspicion” under the POEO Act did not exist.

For more information on “reasonable suspicion” and notices under the POEO Act, contact us.

The content contained in this Essential Guide is, of course, general commentary only. It is not legal advice. Readers should contact us and receive our specific advice on the particular situation that concerns them. If you would like advice or assistance with specific issues arising out of this Essential Guide, please contact the Planning, Environment & Local Government Team at BAL Lawyers.  You can contact a member of the team directly by phone on (02) 6274 0821.

Please note that the law detailed in this Essential Guide is correct as at 19 August 2020.

[1] POEO Act, s.90).

[2] POEO Act, s.96(1).

[3] Kempsey Shire Council v Slade [2015] NSWLEC 135 (Kempsey) [23].

[4] Ibid.

[5] Ibid [22].

[6] [2015] NSWLEC 135 [22].

[7] (1970) AC 942.

[8] (1970) AC 942, 948.

[9] (1966) 115 CLR 266.

[10] (1966) 115 CLR 266, 303.

[11] Hossein Yamini v The Council of the City of Sydney [2020] NSWLEC 26 (Yamini).

[12] Ibid [49].

[13] Ibid [50].

[14] Ibid [50].

[15] Ibid.

[16].Ibid.

[17] Ibid.