In brief - Environmental authorities not required to give notice of entry
Landowners will be interested in the recent decision of the NSW Court of Appeal in LDF Enterprises Pty Ltd v State of New South Wales  NSWCA 89
as it provides an important clarification about the powers of entry in the course of environmental investigations and the proper jurisdiction to hear an injunction under environmental legislation.
This decision is of increasing importance given the surge in enforcement activity currently being carried out by the Environment Protection Authority
in relation to environmental offences.
Injunction sought by landowner rejected by NSW Supreme Court and Court of Appeal
LDF sought an injunction in the Supreme Court of NSW against the Office of Environment and Heritage
(OEH) to stop the officers of the OEH from entering the land to inspect a possible offence against the National Parks and Wildlife Act 1974
(NPWA). The primary judge refused the injunction. LDF then appealed to the NSW Court of Appeal, who upheld the decision of the primary judge and refused to grant the injunction.
There were two bases on which the injunction was refused by the Court of Appeal:
- the Court does not have the jurisdiction to grant injunctions in relation to potential breaches of environmental legislation as it is a matter which should properly be dealt with by the Land and Environment Court, and
- no procedural fairness is required to be given prior to exercising the power of entry when investigating an alleged environmental offence under environmental legislation
Land and Environment Court is proper jurisdiction to hear injunctions under environmental legislation
The Court of Appeal held that the Supreme Court did not have the jurisdiction to hear the injunction due to section 71
of the Land And Environment Court Act 1979
Section 71(1) of the Act provides:
(1) Subject to section 58, proceedings of the kind referred to in section 20(1)(e) may not be commenced or entertained in the Supreme Court.
Relevantly, section 20(1)(e) identifies a general class of matters involving environmental legislation, including the NPWA. It was on this basis that the Court held (at ):
The consequence is that in respect of matters involving what may broadly be described as judicial review of the enforcement of rights, obligations or duties, or the exercise of functions, conferred or imposed by a wide range of planning or environmental laws, including the National Parks and Wildlife Act and the Protection of the Environment Operations Act, not only is jurisdiction invested in the Land and Environment Court, but that jurisdiction is exclusive of that of the Supreme Court. Proceedings answering that description may neither be commenced nor maintained in the Supreme Court.
Procedural fairness when exercising inspection and investigation powers under Protection of the Environment Operations Act
The Court of Appeal also found that the OEH did not need to afford LDF any procedural fairness when exercising its power of inspection and investigation under the Protection of the Environment Operations Act 1997 (POEO Act) (which apply to investigations under the NPWA under section 156B(2)(a) of that Act). (Note that the NPWA picks up on the investigation and inspection powers of the POEO Act).
The Court also considered that the requirement for procedural fairness could not be read into the inspection and investigation powers by the Court for the following reasons:
- Section 196 of the POEO Act, when read as a whole, distinguishes between the power of entry "at any time" and "at a reasonable time" and it would be difficult to construe the words “at any time” as meaning “at any time, subject first to the landowner having been notified and given an opportunity to be heard”.
- Reasonable force is permitted to be used when undertaking an inspection. In other words, this authorises entry where the occupier has not consented or where the owner has not been notified in advance of the entry being effected.
- Wilful obstruction of an authorised person or officer who is undertaking an inspection is an offence. On this point, the Court said "a likely occasion for wilful delay or obstruction is when a landowner has not received notice of entry".
- Authorised persons or officers may exercise their powers of investigation for the following purposes (section 184):
- for determining whether there has been compliance with or a contravention of this Act or the regulations or any environment protection licence, notice or requirement issued or made under this Act
- for obtaining information or records for purposes connected with the administration of this Act
- generally for administering this Act and protecting the environment. These very purposes would be frustrated for environmental investigations if the power could only be exercised after notice had been given.
- Section 197 does not empower entry onto residential premises without the permission of the occupier or a search warrant and the provisions regulating the issue of warrants do not require notice to be given of the possible issuing of a warrant. It would be incongruous for there to be a greater level of notice for non-residential premises.
- Section 189(2) requires an authorised person or officer to provide identification if requested by any person the subject of an investigation. The Court stated (at ) that the "terms of that provision tend to sit ill with the right only being exercisable after notice has first been given to the landowner."
Landowners subject to an investigation under environmental legislation should consider seeking legal advice
The decision emphatically held that relevant environmental authorities have no duty to accord procedural fairness when exercising powers of investigation, including the power of entry onto property. This means that no notice of entry is read into the POEO Act to require notification to be first given by the authority prior to entering the land for the purposes of an investigation.
Caution needs to be exercised by landowners in these types of circumstances due to the potential impact an obstructive approach can have on future penalties under relevant environmental legislation. At the same time, there are limits to the powers of an authority and owners of land enjoy other rights in the context of such investigations. These powers need to be carefully navigated.
You should seek legal advice if you find yourself the subject of an investigation under environmental legislation in relation to any alleged environmental offence.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.