Posted on April 29, 2020 by Katie Mortimer 4

Validity of POEO Act Prevention Notices – The importance of identifying the ‘Occupier’

The Land and Environment Court recently examined the meaning of ‘occupier’ in the context of a prevention notice issued under the Protection of the Environment Operations Act 1997 (POEO Act).

This issue is important as regulatory authorities’ powers to issue prevention notices are limited to directing either (1) the occupier of premises, or (2) a person carrying on the relevant activities, to take preventative action.  If a prevention notice is purportedly issued to an occupier, but a regulatory authority cannot later prove that person indeed ‘occupies’ the relevant premise, then the notice cannot be enforced.

Facts 

The Council of the City of Sydney (Council) received a complaint that contaminated liquid waste was being discharged from a property in Glebe. The Council issued a clean up notice, then a prevention notice to the property’s owner (Appellant). When the prevention notice wasn’t complied with, Council issued a penalty notice to the Appellant for the failure to comply (per s97 of the POEO Act).

The Appellant court elected the penalty notice, was convicted in the Local Court, and then appealed to the Land and Environment Court (LEC).

In the LEC the Appellant argued that:

• they were not the occupant of the relevant premises, and therefore the Council had no power to issue the notice to them,
• there was no basis for Council to ‘reasonably suspect’ an activity was being carried on in an environmentally unsatisfactory manner.

Legislative Power to issue Prevention Notices 

Part 4.3, Chapter 4 of the POEO Act allows for the issue of prevention notices.

Section 96 applies when an appropriate regulatory authority, in this case the Council, ‘reasonably suspects that an activity has been or is being carried out in an environmentally unsatisfactory manner at any premises or by any person …’. ‘Environmentally unsatisfactory manner’ is defined in the Act.

Section 96(2) provides for the issue of prevention notices, and states that:

‘(2)    Prevention notices The appropriate regulatory authority may, by notice in writing, do either or both of the following—

(a)  direct the occupier of the premises,

(b)  direct the person carrying on the activity (whether or not at premises),

to take such action, as is specified in the notice and within such period (if any) as is specified in the notice, to ensure that the activity is carried on in future in an environmentally satisfactory manner.’

Meaning of ‘Occupier’ and having ‘control of premises’

‘Occupier’ is defined in the POEO Act to mean ‘the person who has the management or control of the premises’.

In this case, the Council only contended that the Appellant had control of the premises, not management of them. As a result of this, the Court was only required to determine if the Appellant ‘controlled’ the premises in the relevant sense.

In making its determination, the Court stated that the notion of ‘control’ should be given its ordinary meaning being to ‘dominate, command’. The Court also stated that the concept of ‘control’ will turn on the facts of each particular circumstance. In each case where a person is alleged to occupy premises, it will be necessary to consider the extent to which a person has capacity to ‘dominate, command’, and the source of that capacity (see [29]).

The Court determined that ‘control’ must mean more than mere ownership. The fact that a person owns land and may have a residual dominion over it, is insufficient to constitute ‘control’ for the purposes of issuing a prevention notice (see [30]). Rather, ‘control’ means that a person is able to take action with respect to an asserted activity without requiring any permission (see [31]).

The Court did comment that ‘management’ is a concept that suggests lesser involvement that control.

In this instance, the Council was unable to prove the Appellant occupied the premises. The Appellant gave uncontested evidence that he was not the occupier, and the Council did not adduce any evidence that established he was.

Meaning of ‘Reasonable Suspicion’

As stated above, prevention notices can only be issued when a regulatory authority holds a reasonable suspicion ‘that an activity has been or is being carried on in an environmentally unsatisfactory manner…’. The Appellant contended that Council had no basis to hold any reasonable suspicion.

The Court rejected the Appellants argument, and adopted an earlier summary of the meaning of reasonable suspicion in the context of the POEO Act (in respect of a person who is reasonably suspected to have caused a pollution incident pursuant to s104(2)(b)).

Relevantly:

• a regulator must have formed a genuine suspicion,
• reasonable suspicion involves less than a reasonable belief, but more than a possibility.
• there must be some objective and factual basis for the suspicion, that would create in a reasonable person’s mind in the regulator’s position, an apprehension [that the activity is being carried out in an environmentally unsatisfactory manner],
• a reasonable suspicion may be based on hearsay or material that would be inadmissible in evidence. However that material must have some probative value,
• the objective circumstances do not need to establish on the balance of probabilities [that the activity is being carried out in an environmentally unsatisfactory manner].

(see [47] and Kempsey Shire Council v Slade [2015] NSWLEC 135 at [22]).

Key Lessons 

In proceedings under the POEO Act, regulators are not required to prove that a person is an occupier of premises, unless evidence is given to the contrary (see s258 POEO Act). This is termed a rebuttable presumption.

However the rebuttable presumption doesn’t absolve regulatory authorities from being able to prove that the relevant person (if an ‘occupier’) has management or control of relevant premises. The presumption is rebutted when a recipient provides evidence to the contrary. This is a very low bar.

Regulators must be in a position to prove that a person to whom a notice has been issued (on the basis of occupying premises), does indeed have management and control of the relevant premises.

Before any prevention notice is issued, careful consideration should be given to who the notice is issued to. Any error in issuing it to the wrong person or entity, will result in it being invalid and unenforceable.

Read the case in full here: Hossein Yamini v The Council of the City of Sydney [2020] NSWLEC 26

If you would like to discuss the issues raised in this post, please contact Katie Mortimer on 8235 9716 or leave a comment below.