Legal notices for clean-ups
The legal take on what a firm should do when served with a clean-up order, according to Jodie Wauchope of Gadens Lawyers.
If you or your company receives a clean up notice from a council or the EPA, sit up, take notice, and swing into action, because a delay could cost you dearly. A three month delay in taking steps to comply with a clean up notice recently cost one company over $157,000 in fines and legal fees.
The recent decision in Cessnock Council v Quintaz is a harsh reminder to property owners of the dim view the court takes of delays in complying with directions by regulatory authorities. In this case, the company Quintaz was fined $112,500 by the Land and Environment Court, plus over $45,000 in legal fees for what amounted to a three month delay in taking the first steps required to comply with a clean up notice.
Clean up notices can require a property owner to take specific steps to prevent pollution. In this matter, Cessnock Council issued a clean up notice requiring Quintaz to get an asbestos expert to inspect piles of materials on a property owned by the company, to ascertain whether there was asbestos within the piles, and to develop (and implement) a remediation action plan for the materials.
Quintaz provided an expert report and remediation action plan approximately three months after they were due. The council prosecuted the company for failing to comply with the clean up notice because of the delay.
The court found that there was minimal asbestos on the site, minimal environmental impact and the asbestos report to be satisfactory. However despite this, the delay in providing the report was heavily punished because it was found to undermine the Protection of the Environment Operations Act and offend against the objects of the Act, being to minimise actual or potential environmental harm caused by pollution.
NSW land owners or occupiers who receive a Notice of Proposed Service of a clean up notice, or a clean up notice should:
Read the notice closely and diarise all time limits stipulated
Make sure you understand what it is asking you to do. If you do not understand it, or it does not seem reasonable, discuss it with the council officer concerned and/or seek legal advice
Figure out what you need to do to comply, and make enquiries of appropriate experts who may be needed to undertake work (reports or testing for example). Find out when they can do the work and get a report to you.
If you think that you cannot comply within the time required (for good reason), let council know, in writing immediately, and set out actions you have taken and dates with which you can comply not assume that council will give you an extension of time. You must keep acting to try to comply remember it is a criminal offence not to comply with a clean up notice.
If you do not comply you may be prosecuted. Maximum penalties for a corporation are $1million, and for an individual $250,000. Daily penalties can also apply in addition. This means that if you are unable to comply within time, or if you delay because you are seeking legal advice, you risk a penalty.
While it is possible to challenge a clean-up notice, the lack of appeal rights means that the grounds for a challenge are limited.
If you do not understand a notice, or the requirements in the notice, seek advice. Gadens can assist by making representations to council, lodging appeals, or assisting you to take the steps necessary to comply with notices.