WRITTEN BY Tomas Bush
The decision of the Land and Environment Court in Environment Protection Authority v Eastern Creek Operations Pty Limited (‘Eastern Creek’)  NSWLEC 182 highlighted the importance of strictly complying with legislative requirements when issuing investigation notices. In that case, the EPA was unsuccessful in its attempt to prosecute Eastern Creek for failing to comply with an investigation notice because the Court found that the notice was invalid.
The notice in Eastern Creek was set aside as it did not meet what the Court described as the minimum requirements for a valid notice under the applicable legislation. It is therefore important to ‘get it right’ when issuing investigation notices during an investigation, because, as Eastern Creek demonstrates, there can be significant consequences when it comes time to taking court proceedings if a notice is later found to be invalid.
In this Essential Guide we explain the minimum requirements for a valid investigation notice. While there will be slight differences depending on the type of notice and the legislation under which it is issued, this guideline focuses on the common requirements that are necessary for a valid and enforceable notice.
The key requirements are as follows:
We address each of these requirements in more detail below.
Proper delegation or authority
Ordinarily, the relevant legislative provision authorising the issue of an investigation notice will specify the person, or class of persons, who may issue the notice. For example, notices requiring the provision of information or records under the Environmental Planning and Assessment Act 1979 (‘EPA Act’) must be issued by “investigation officers” appointed by either the Secretary of the Department of Planning, Industry and Environment or a Local Council under section 9.14 of the EPA Act. Under the Protection of the Environment Operations Act 1999 (‘POEO Act’), only “authorised officers” appointed under section 187 of the POEO Act can issue investigation notices. The authority given to a person to issue an investigation notice can be made subject to conditions, including conditions that limit the circumstances in which that person can issue a notice.
If a person issues an investigation notice and they are not authorised to do so, or they do so contrary to any conditions of their authorisation, then the notice will be invalid and of no effect. To avoid this happening, before issuing an investigation notice, officers should:
If there is any doubt as to whether a person has authority to issue an investigation notice, legal advice should be obtained. To avoid potential invalidity, regulatory authorities should regularly review, maintain and update their instruments of appointment.
Issued for a lawful purpose
Investigation notices must be issued for a lawful purpose. An investigation notice can only be issued for a purpose authorised by the legislation under which the notice is issued. Generally, the legislative provision empowering a person (or class of persons) to issue an investigation notice will specify the purpose for which the notice can be issued. For instance, under the EPA Act, Council investigation officers can only issue an investigation notice for the purposes specified in s 9.15 of the EPA Act, which includes “enabling a council to exercise its functions under this Act”. This means that an investigation notice cannot be issued under the EPA Act for the purpose of investigating non-compliance with other legislation such as, for example, the POEO Act. That is not a function of the EPA Act.
The Court of Appeal in Port Macquarie-Hastings Council v Mansfield  NSWCCA 7 clarified the scope of the purposes for which investigation notices can be issued under the EPA Act. The Court confirmed that the purposes for which an investigation notice can be issued include investigating whether certain action constitutes a breach of the requirements of the EPA Act and, if so, to assist in deciding what action to take to deal with the breach, such as by ordering the action to cease or that rectification work be undertaken. The Court clarified that this was the case regardless of whether criminal proceedings may also be in contemplation.
When issuing an investigation notice the issuing authority or officer should be clear about the purpose for which the notice is issued. Ideally, the purpose for which the notice is issued should be set out in the notice itself. In addition, the issuing authority or officer should ensure that contemporaneous records exist that set out the reasons for giving the notice. This could be in the form of a file note, decision memo or other document. These records can be produced to the Court as evidence if the recipient of a notice or some other interested party challenges the validity of the notice on the basis that it was issued for an unlawful purpose.
Clear description of the matter to which the notice relates
Investigation notices must clearly describe the matter to which they relate. While courts will not be overly precious or hypercritical when reviewing an investigation notice, investigation notices must set out, with some degree of specificity, the matter the subject of the notice. In particular, the description of the relevant “matter” must go beyond a mere assertion that it constitutes or may constitute a contravention of some identified section.
The need for caution when setting out the matter to which an investigation notice relates is well illustrated in the decision of Zhang v Lane Cove Council  NSWLEC 10 (‘Zhang’). In that case, a notice was issued in respect of some excavation works that had occurred contrary to an approved development consent, which limited the depth of excavation to a specified level. Excavation had occurred beyond that level. The recipient challenged the notice on the basis that it did not clearly describe the matter to which it related. The notice described the matter to which it related as “the over excavation” of the premises. The Court held that this explanation was insufficient to adequately describe the matter, finding that it was not clear on the face of the notice itself what “over excavation” meant in that context. The Court indicated that it was necessary to describe the reference points against which the excavation was measured, over which the excavation might be considered “over excavation”.
Similarly, in Eastern Creek, the EPA prosecuted Eastern Creek for two offences of failing to comply with a statutory notice issued under the POEO Act requiring it to provide certain information. Eastern Creek operates a waste management facility in Eastern Creek, NSW. It receives mixed residual waste from domestic and commercial garbage bins and processes that waste to produce “Mixed Waste Organic Outputs” (‘MWOO’), which it on-sells for eventual application to land. In 2018, the EPA became concerned that the application of MWOO to land may pose environmental and human health risks. For the purpose of investigating these concerns, the EPA sought a range of information from producers of MWOO and it was in this context that the statutory notices were issued to Eastern Creek.
The notice was found to be invalid because it did not clearly identify the matter the subject of the notice (i.e., what the EPA was investigating). The notice stated that the matter to which it related was an investigation into the “potential risk to the environment and human health of the land applying MWOO under the Act and Regulation from the premises”. This description of the matter was to be found to be excessively broad and unclear in its terms. The court referred to previous authorities, including Zhang, which indicate that a notice must do more than simply refer to the broad responsibilities of the issuing authority under the relevant legislation.
In finding the notice unclear, the court noted that the prosecuting authority bears the onus of proving the validity of the notice to the criminal standard, and the notice must be construed on its face; that is, without reference to extraneous materials or the context in which it was issued. Because the statutory notice was found to be invalid by the Court, the EPA was precluded from successfully prosecuting Eastern Creek for failing to comply with the POEO Act.
This decision is another example of the importance of carefully drafting investigation notices. If the description of the matter to which the notice relates is ambiguous or overly broad it is likely to be invalid and unenforceable.
Description of the information sought and its connection to the matter
An investigation notice must clearly disclose the information sought and its connection to the matter to which the notice relates. This means that there must be a logical and rational connection between the matter to which the notice relates, and the specific information sought.
In D’Anastasi v Department of Environment, Climate Change & Water NSW  NSWCA 374, the Court of Appeal considered the validity of an investigation notice issued under the POEO Act in relation to an investigation of the misuse of pesticides in baits on land between 26 February 2010 and 2 March 2010 which had resulted in the death of several birds. The notice sought information and records outside that period, namely in the period 1 July 2009 to 22 February 2010, and 3 March 2010 to 1 July 2010. The Court found that the notice was invalid because it did not disclose how or why it was necessary or appropriate to seek that information, given that the matter to which the notice related was referable only to the period between 26 February 2010 to 2 March 2010.
This case demonstrates that there must be a clear relationship or connection between the matter to which the notice relates and the information sought. When drafting such notices, regulatory authorities must therefore exercise care to ensure that the description of the information or records sought is sufficiently clear that a reasonable reader can readily identify the connection of the information or records to the matter the subject of the notice. As the D’Anastasi decision demonstrates, a failure to do so may render the notice invalid.
As the numerous cases in which investigation notices have been found to be invalid demonstrate, preparing a valid investigation notice, particularly in complex or contentious investigations, can be difficult and care must be exercised to ensure that they are valid. As the power to issue an investigation notice is a substantial power that infringes upon a person’s right to silence, the Courts will always be careful to ensure that notices meet the minimum requirements prescribed in the legislation.
For more information, contact our Planning, Environment & Local Government team at BAL.
 Protection of the Environment Operations Act 1997 (‘POEO Act’), s 188; Environmental Planning and Assessment Act 1979 (‘EPA Act’), s 9.14(2).
 EPA Act (n 1), s 9.15(1)(a).
 Port Macquarie-Hastings Council v Mansfield  NSWCCA 7, .
 D’Anastasi v Environment, Climate Change and Water NSW  NSWCA 374 (‘D’Anastasi’), .
 Zhang v Lane Cove Council  NSWLEC 10,  – .
 Environment Protection Authority v Eastern Creek Operations Pty Limited  NSWLEC 182, .
 Ibid, .
 Ibid, .
 Ibid, .
 Ibid, .
 D’Anastasi (n 4),  (per Sackville J).