Posted on August 24, 2026 by Anna Sinclair and Elliot Maassen 8

What is a “reasonable excuse” for not complying with a clean-up notice?

Under s 91 of the Protection of the Environment Operations Act 1997 (POEO Act), an appropriate regulatory authority may give a person a clean-up notice requiring the person to take clean-up action in respect of a pollution incident. A person who, without “reasonable excuse”, does not comply with a clean-up notice is guilty of an offence.

The Land and Environment Court recently considered a “reasonable excuse” defence in Environment Protection Authority v Hughes; Environment Protection Authority v ANT Civil Pty Ltd (No 5) [2026] NSWLEC 92 (EPA v Hughes). The decision contains a useful summary of the relevant law and a clear application of it to the facts of the case.

This decision is an essential read for regulatory authorities who issue clean-up notices, such as local councils, or anyone in receipt of one. 

What was EPA v Hughes about?

Andrew Hughes, a part-owner of a property in Wheeny Creek (Property), was charged with five offences under the POEO Act arising from the dumping of unprocessed building and demolition material and asbestos waste on the Property. ANT Civil Pty Ltd, a company that Hughes was found to have controlled, was charged with a sixth offence for transporting building and asbestos waste to and unlawfully using the Property as a waste facility.

The fifth charge was that Hughes failed, without reasonable excuse, to comply with a clean-up notice that required him to provide the Environment Protection Authority (EPA) with a draft copy of a Remedial Action Plan (RAP) to remove contaminated fill material from the Property (Clean-Up Notice).

Hughes did not dispute the Clean-Up Notice’s validity nor his failure to comply with it. He instead contended that he had a reasonable excuse.

Hughes submitted the Clean-Up Notice did not give him enough time to comply because it was a difficult time of year for him to hire experts to prepare the draft RAP. He tendered evidence of him writing twice to the EPA without response. He also submitted the notice conflicted with an earlier EPA prevention notice that stopped him from disturbing the soil.

Legal principles in determining whether there is a “reasonable excuse”

In considering whether Hughes had raised the “reasonable excuse” defence, Beasley J confirmed that the defendant has the burden of establishing the defence under s256(1) of the POEO Act and the standard of proof is on the balance of probabilities.

Because the term “reasonable excuse” is not defined under s 91B of the POEO Act, His Honour had regard to and helpfully outlined, the key legal principles that apply, including:

• it is a matter to be determined objectively by the courts by reference to the statutory context and there is no exhaustive list of what constitutes a “reasonable excuse”,
• the question of what constitutes a “reasonable excuse” is to be determined from the terms and structure of the particular statute and the circumstances of each case,
• a “reasonable excuse” is not confined to physical or practical difficulties in complying with the statutory prescription, and it includes any excuse which would be accepted by a reasonable person as sufficient to justify non-compliance bearing in mind the importance of the particular statutory prescription to the overall statutory regime,
• the question of what constitutes a “reasonable excuse” involves an objective determination in all the circumstances, and
• mere inconvenience and expense would not ordinarily provide a “reasonable excuse” for non-compliance.

Hughes did not have a reasonable excuse

Justice Beasley found beyond reasonable doubt that Hughes, without reasonable excuse, had not complied with the Clean-Up Notice.

His Honour rejected the submission that Hughes did not have enough time to comply. First, because there was no evidence that he took any steps to comply. Second, because the 57-day deadline was not unreasonable – it only required Hughes to furnish a draft RAP not physically remediate the Property. Third, because the EPA never said it would extend the deadline in response to Hughes’ letters. Finally, because the Clean-Up Notice did not conflict with the earlier prevention notice – it did not require any soil disturbance. Even if it had, the Clean-Up Notice would have clearly revoked the earlier prevention notice under section 110(1) of the POEO Act.

Takeaways

EPA v Hughes is an important reminder that the recipient of a clean-up notice may have a defence if they had a reasonable excuse for not complying with it. Whether an excuse is reasonable depends on the notice itself and the facts surrounding its issue. The excuse does not have to be limited to physical or practical problems with complying.

If a regulatory authority issues a clean-up notice, it should evaluate whether its terms might give the recipient a reasonable excuse for not complying. While the authority cannot know everything about the recipient’s situation, it should check whether the deadline is too short for the work required having regard to any environmental harm or risk of harm in the meantime. It should also check whether the order is physically or practically incapable of being complied with. Taking these steps will help ensure that the authority can issue a penalty notice or commence prosecution proceedings if the recipient fails to comply with the notice.

If the recipient of a notice is having trouble complying, they should contact the authority and explain why. Even if the authority does not reply, records made at the time are usually more persuasive than explanations given later. Importantly, simply contacting the authority will not protect a recipient who makes no attempt to comply. The recipient should therefore make genuine efforts to comply, and keep records of those efforts, even if they believe they have a reasonable excuse for not complying.

If you have any questions regarding this article, please leave a comment below or contact Anna Sinclair on 8235 9713 or Elliot Maassen on 8235 9726.