Where an Environment Protection Order is about preventing harm, the Clean-up Order under the Environment Act 2000 is about repairing it — and about who pays.
Section 103(1) — the trigger
(a) this Act or any of the repealed Acts; or
(b) an Environment Policy; or
(c) an Environment Protection Order; or
(d) an Emergency Direction; or
(e) the Regulation; or
(f) a condition of an environment permit,
he may issue a Clean-up Order under which officers or other persons authorised by the Director may take specified action to minimise or restore any resulting environmental damage.
First, harm must already have been caused — unlike an Environment Protection Order, which can be issued where harm is merely likely.
Second, paragraph (a) includes contraventions of the repealed Acts. Historic contraventions under the former environmental planning, water resources and contaminants legislation are within the Director’s reach.
Section 103(2) and (3) — form and service
(a) be in writing;
(b) specify the person alleged to have caused the environmental harm;
(c) specify the contravention alleged to have caused it; and
(d) include authorisation for action to be taken to prevent or mitigate further environmental harm.
It must be served on the person alleged to have caused the harm as soon as practicable after it is issued (s 103(3)).
The language of “alleged” in paragraphs (b) and (c) is deliberate. A Clean-up Order is not a finding of guilt; it is an administrative response to harm that has occurred. But the allegation must be specified, which is what allows it to be answered.
Sections 103(4) and (5) — the obligation
A person served with a Clean-up Order shall take all reasonable steps to comply with the requirements of the Order.
Note the formulation: all reasonable steps, not absolute compliance. It mirrors the standard in the general environmental duty and in section 9(2)(b). Keep the evidence of the steps taken and of why anything not done was not reasonably possible.
The Director may, by written notice, vary or revoke a Clean-up Order (s 103(5)).
Section 103(6) — entry and seizure
(a) enter premises, other than a residence, without a warrant; and
(b) seize evidence of the commission of an offence.
Two limits are built in: not a residence, and only evidence of the commission of an offence. Those limits reflect section 44 of the Constitution — freedom from arbitrary search and entry. The general powers of authorised officers are in sections 118 to 123.
Section 104 — failing to comply
A corporation — a fine not exceeding K250,000.00.
A person other than a corporation — a fine not exceeding K125,000.00, or imprisonment for up to five years, or both.
Default penalty: K15,000.00.
The same maximum as failing to comply with an Environment Protection Order, and as causing serious environmental harm.
Section 105 — the Director does the work and sends the bill
(1) Where the requirements of a Clean-up Order are not complied with, the Director may take any action required by the Order.
(2) The Director may then recover the reasonable costs and expenses incurred from the person who failed to comply.
(3) Those costs are a civil debt due to the Authority, and an action may be instituted to recover it.
(4) The Director shall notify the person of the amount due and fix a date for payment not less than 28 days after the notice; if unpaid by then, the person is liable to interest at the prescribed rate per annum.
The fine under section 104 is capped. The cost recovery under section 105 is not — it is whatever the reasonable cost of the clean-up turns out to be, plus interest from 28 days after the notice.
For a significant spill or contaminated site, that figure will usually exceed any fine. Doing the work yourself, properly and promptly, is almost always cheaper than having it done for you.
Section 105 sits alongside two other cost provisions: section 129, under which a court may award damages and recovery of costs on conviction, and section 130, under which a court may order action to minimise environmental harm. And section 99 allows an environmental bond to be required as a permit condition, which is the security against exactly this risk.
Section 103(7) — the permit holder’s protection
The Director shall not issue a Clean-up Order, in relation to environmental harm, to a person who caused such harm by carrying out an activity in accordance with the terms and conditions of a permit.
The same shield as section 101(6) for Environment Protection Orders, and it depends on the same thing: operating within the permit conditions. See breach of permit conditions.
Challenging a Clean-up Order
A Clean-up Order is a decision of the Director in relation to an activity carried on by the person served, so section 68 review by the Environment Council is available within 21 days, with the operation of the decision able to be suspended, and a National Court stay under section 69 if it is not. Section 109 also provides for review in relation to Part IX.
Grounds to consider: the Order does not specify the alleged contravention as section 103(2)(c) requires; the person served did not cause the harm (see section 9 on responsibility for environmental harm); the activity was carried out in accordance with a permit so section 103(7) applied; or the action required goes beyond minimising or restoring the resulting damage.
If you receive a Clean-up Order
- Begin work immediately and document every step — the standard is all reasonable steps.
- Read the specified contravention; it defines the scope of what must be restored.
- Engage competent contractors and keep their scopes, reports and invoices.
- If the Order is impracticable in part, apply for a variation under section 103(5), in writing, before the deadline.
- Consider whether section 103(7) applies — were you operating within your permit?
- Consider a section 68 review within 21 days.
- Check whether the section 8 notice of serious or material harm was given; failure is a separate offence and a ground to cancel a permit.
- Take advice early — the exposure under section 105 is uncapped.
Sources
- Environment Act 2000 — ss 7–10, 68, 69, 99, 101–105, 109, 116, 118–123, 129, 130; Part IX
- Conservation and Environment Protection Authority Act 2014
- Constitution — ss 44, 59
Before relying on anything here, read the current text of the Environment Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.