Are you ‘authorised’ under the POEO Act? NSWCA highlights delegation trap for council enforcement staff

A recent case decided by the NSW Court of Appeal, M&S Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2024] NSWCA 17, highlights the important distinction between the delegation of council functions under the Local Government Act 1993 (LG Act) and the appointment of an ‘authorised officer’, in this case, under the Protection of the Environment Operations Act 1997 (POEO Act). This distinction has important implications for council compliance and enforcement staff.

Facts

M&S Investments (NSW) Pty Ltd (M&S) commenced a private prosecution in the Land and Environment Court for a number of alleged offences under the POEO Act, including the unlawful dumping of waste, on a property owned by M&S in Southwestern Sydney.  

The defendants sought to have the case struck out on the basis that the prosecution was time-barred under s.216(2) of the POEO Act. That section provides that proceedings for an offence may be commenced ‘within but not later than 3 years after the date on which evidence of the alleged offence first came to the attention of any relevant authorised officer’. The defendants argued that evidence of alleged offence first came to the attention of an ‘authorised officer’ of Liverpool City Council in 2017, more than three years before the proceedings were commenced. 

The POEO Act defines an ‘authorised officer’ for the purposes of s.216(2) to be ‘any person who is an authorised officer for the purposes of this Act, whether or not the person has the functions of an authorised officers in connection with the offence concerned’.  The power of a council to appoint a person as an authorised officer for the purposes of the POEO Act is provided by s.187.  

In this matter, the instrument relied on by M&S to establish that the relevant council officers were ‘authorised officers’ under the POEO Act was an “instrument of delegation”. The Instrument was stated to have been issued under s.378 of the LG Act. The functions delegated in the Instrument were grouped under general headings, including ‘G6 Power of entry’ and ‘R11 Administration’, as set out below:

G6 Power of Entry

G6.1 To give an owner or occupier of land or premises written notice of the Council’s intention to enter their land for the purpose of inspection, investigation, sampling, seizures and any other functions as authorised under the provisions of the following Acts and regulations made under them:

…Protection of the Environment Operations Act [amongst others]

R11 Administration

To exercise and perform the powers, authorities, duties and functions of an authorised officer or authorised person or council investigation officer (subject to any limitations determined by the Chief Executive Officer from time to time) in respect of all matters arising from the administration of any of the following Acts and their associated regulations: …

…Protection of the Environment Operations Act [amongst others]

The primary judge of the Land and Environment Court accepted the defendants’ argument that, by the instrument of delegation, the council officers were appointed as ‘authorised officers’ for the purpose of s.216(2) of POEO Act, and consequently found that the proceedings for some of the charges were not commenced within time.  M&S appealed on a number of grounds.  

Appeal

The Court of Appeal found that the primary judge erred in concluding that the relevant council officers were ‘authorised officers’ for the purposes of s.216(2) of the POEO Act. The leading judgment was delivered by Chief Justice Preston of the LEC.  His Honour found:

1. The statutory powers in s.378 of the LG Act and s.187(2) of the POEO Act are mutually exclusive. The delegation of a function by a general manager under s.378 cannot constitute the appointment of the person as an authorised officer under s.187(2) (at [89] – [92]);
2. The nature of each of the powers under s.378 of the LG Act and s.187 of the POEO Act are fundamentally different. The power in s.378 of the LG Act is for the General Manager to delegate (or sub-delegate) their functions to other officers of the Council. In contrast, the power given to the Council in s.187(2) of the POEO Act is to appoint an officer or employee an as authorised officer. The officer, by virtue of that appointment, then has various powers under the Act.
3. The instrument in this matter was clearly a purported delegation under s.378 of the LG Act and not an instrument of appointment under s.187 of the POEO Act. As such, the relevant officers who had notice of the alleged offence were not ‘authorised officers’ under the POEO Act. 
4. As a consequence, the limitation period in s.216(2) of the POEO Act did not start to run on the date evidence of the alleged offences first came to the officers’ attention, and M&S’ prosecution was not time barred.

Implications for councils

Council staff should take note that an instrument of delegation under s.378 of the LG Act is not able to be used to appoint an officer or employee as an ‘authorised officer’ for the purpose of the POEO Act.  The power to “delegate” functions and the power to “appoint” are different in nature.

This is important because Council officers must be ‘authorised officers’ to exercise relevant powers under the POEO Act, including the power of entry (s 196), the power to take and remove samples (s 198) and the power to issue investigation notices or require a person to answer questions (s 203). The exercise of these powers by a Council employee without having first been properly appointed as an ‘authorised officer’ would have a range of serious consequences. For example, evidence gathered by that officer may be found to be unlawfully obtained and therefore not able to be relied upon in subsequent criminal or civil enforcement proceedings. The officer could also be found to have trespassed on land.

It can be difficult to navigate the different ways in which legislation allows council officers to exercise certain functions or powers, including whether this requires delegation, an appointment or authorisation. We regularly review and provide advice on such instruments and prepare and update Council templates.

In partnership with RelianSys, we also provide a fully-integrated web-based solution for Council delegations, authorisations and appointments. For further information about this web based solution please contact RelianSys on 1300 793 905. For more information on delegations please contact our Planning, Environment & Local Government team on 02 6274 0999..