We have previously published an essential guide regarding the issue of investigation notices requiring the provision of documents and information. In that guide, we referred to the decision of Environment Protection Authority v Eastern Creek Operations Pty Limited [2020] NSWLEC 182 (‘first instance decision) in which the Court found the investigation notice the subject of the proceedings invalid on the basis that the notice did not adequately describe the matter to which it related. Since the publication of our essential guide, the Environment Protection Authority brought an appeal against that decision and the Court of Appeal has now published its decision in Environment Protection Authority v Eastern Creek Operations Pty Limited [2022] NSWCCA 97 (‘the Appeal’).
The Majority (Fullerton and Lonergan JJ) dismissed the Appeal on procedural grounds[1] and therefore did not consider the validity of the investigation notice the subject of the proceedings. The dissenting judge (Macfarlan JA) found that the investigation notice was valid and that it adequately described the matter the subject of the notice, contrary to the first instance decision. As explained in our essential guide on investigation notices, the notice the subject of the proceedings related to an investigation into the potential environmental and human health impacts arising from the application of Mixed Waste Organic Output to land. Macfarlan JA held that, while the grammar of the notice left something to be desired, when read as a whole, the matter to which it related was clear.[2]
Macfarlan JA distinguished the case from the circumstances in Zhang v Lane Cove Council [2015] NSWLEC 10 (‘Zhang’) and D’Anastasi v Environment, Climate Change and Water NSW [2011] NSWCA 374 (‘D’Anastasi’), in which investigation notices had been found to be invalid, on the basis that the notices in those cases related to investigations of specific instances of non-compliance with regulations and the recipients were entitled to have the specific occurrence of non-compliance identified with precision to ensure procedural fairness in those circumstances.[3] In contrast, the notice the subject of these proceedings was concerned with a necessarily generalised investigation[4] regarding the human health and environmental impacts of a particular lawful activity, the scope of which was not amenable to being described with precision.
While Macfarlan JA was in the minority, His Honour’s reasoning is informative and suggests that the level of precision with which the “matter” must be described in an investigation notice in order for it to be valid will be informed by the nature and scope of the matter being investigated, and in appropriate cases, it will not always be necessary to adhere to the level of precision demanded of the issuing authority in Zhang and D’Anastasi. Nevertheless, persons issuing investigation notices should exercise care when drafting them, including adequately describing the matter to which the notice relates, so as to mitigate the risk of the notice being found invalid.
If you have questions about anything raised in this article, you can contact our experienced Planning, Environment & Local Government team.
[1] The Appeal was made by the Environment Protection Authority under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) which provides that any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an “interlocutory judgment or order” given or made in the proceedings. The Court found that the decision was not an “interlocutory judgment or order” and therefore no appeal could be made under s 5F(3)(a).
[2] Environment Protection Authority v Eastern Creek Operations Pty Limited [2022] NSWCCA 97 at [38]
[3] Ibid at [44] and [49]
[4] Ibid at [49]