A Council, under the Protection of the Environment Operations Act 1997, can issue an environmental prevention notice if it ‘reasonably suspects that an activity has been or is being carried out in an environmentally unsatisfactory manner at any premises or by any person’. The aim is to ensure that the activity if carried on in the future, is done so in an environmentally satisfactory manner.
The requirement for ‘reasonable suspicion’: Kempsey Shire Council v Slade (2015) NSWLEC 135
A notice can only be issued if ‘reasonable suspicion’ exists that an activity has been or is being carried out in an unsatisfactory manner. The basis for establishing reasonable suspicion was set out in the NSW Land and Environment Court in Kempsey Shire Council v Slade. In summary:
- the Council must form a genuine suspicion. This can be less than a reasonable belief but more than just a possibility;
- there needs to be some objective and factual basis for the suspicion in facts sufficient to create suspicion to a reasonable person’s mind in the position the Council finds itself in. This must have some probative value but may be based on material that might be inadmissible as evidence in other circumstances;
- the objective circumstances need not establish on the balance of probabilities that the activity is being carried out in an environmentally unsatisfactory manner.
Protection notices are an important regulatory instrument for Councils. Using them requires an understanding of the legal concepts involved to ensure they are enforceable. This also applies if you are the subject of such a notice and wish to defend your position.
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