The Environment Protection Order is the principal preventive tool in Part IX of the Environment Act 2000. It is issued by the Director, before or after harm occurs.
Section 101(1) — the trigger and the purpose
(a) has caused, or is likely to cause, environmental harm; or
(b) constitutes, or is likely to constitute, a breach of this Act, a mandatory provision of an Environment Policy, or the Regulation; or
(c) has caused, or is likely to cause, a failure to comply with a prescribed standard, an Environment Policy, or a condition of a permit,
he may issue an Environment Protection Order for the purpose of:
(d) restraining or preventing the commission of an offence; or
(e) securing compliance with the general environmental duty, an Environment Policy, any other requirement under this Act, or a condition of a permit.
The Order can be issued about an activity proposed to be carried on, and on the basis that harm or breach is likely. No harm need have occurred, and no offence need have been committed.
Paragraph (e)(i) is especially wide: an Order may be issued simply to secure compliance with the general environmental duty in section 7. That is significant because breach of section 7 is not itself an offence — the Order is how the duty is enforced.
Section 101(2) — the form of the Order
(a) specifying the person to whom it is issued, by name or by reference to the premises of which the person is the occupier;
(b) stating the purpose for which it is issued, and specifying the environmental harm it is aimed at minimising;
(c) where it relates to a provision of the Act, a Policy or the Regulation, specifying the relevant provision; and
(d) served on the person to whom it is issued.
An Order that does not state its purpose, or does not specify the harm it targets, or does not identify the provision relied on, does not meet section 101(2). Those requirements are what make the Order capable of being complied with — and what make it reviewable.
Section 125 deals with service, and section 131 requires Orders to be entered in the Register.
Section 101(3) — the requirements that may be imposed
| Requirement | |
|---|---|
| (a) | Discontinue, or not commence, a specified activity, process or use — indefinitely, for a specified period, or until further notice |
| (b) | Take specified action, including installation, alteration, maintenance or operation of apparatus, plant or structures |
| (c) | Not carry out a specified activity except at certain times, on certain conditions, or in a specified manner |
| (d) | Supply plans, specifications and other information showing how the activity will be carried out, modified or controlled |
| (e) | Comply with the Regulation, a relevant Environment Policy, or a condition of a permit |
| (f) | Provide monitoring equipment and carry out a monitoring programme as specified |
| (g) | Comply with any requirement specified for the purpose of enforcing an environmental improvement plan |
Every requirement must be reasonable and required for the purpose of securing compliance with the Order (s 101(3), opening words). That is the limit on the power, and the ground on which a particular requirement can be challenged.
Section 101(6) — the protection for compliant permit holders
The Director shall not issue an Environment Protection Order, in relation to an activity carried out under a permit, to a person carrying out the activity in accordance with the terms and conditions of the permit.
A permit holder operating within its conditions cannot be made the subject of an Order about that activity. This is the counterpart of section 10(1)(a), under which harm permitted by a permit condition is lawful.
Step outside the conditions and both protections fall away at once: the Order becomes available under section 101(1)(c)(iii), the harm becomes unlawful, and the breach is separately an offence under section 73(2) and a ground for suspension or cancellation under section 72(2)(c).
Section 103(7) contains the same protection for Clean-up Orders.
Sections 101(4), (5) and 102 — compliance
- Section 101(4) — the Director may, by written notice, vary or revoke an Order. If a requirement is impracticable or a deadline unachievable, apply in writing for a variation, with reasons and a proposed alternative.
- Section 101(5) — a person to whom an Order is issued shall comply with it.
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.
That is the same maximum as causing serious environmental harm under section 11. And the default penalty, read with section 116 on continuing offences, means continued non-compliance keeps accruing.
Challenging an Order
An Environment Protection Order is a decision of the Director under this Act in relation to an activity carried on by that person, so a person to whom one is issued may apply to the Environment Council for review under section 68 within 21 days of notification — and the operation of the decision may be suspended on receipt of the application. Where it is not, section 69 allows an application to the National Court for a stay.
Section 109 separately provides for review in relation to Part IX matters. Grounds worth considering include: the Order does not meet the section 101(2) form requirements; a requirement is not reasonable or not directed to securing compliance; or the activity was being carried out in accordance with a permit, so section 101(6) forbade the Order.
If you receive an Order
- Comply first. The penalties are severe and the default penalty accrues.
- Read the four section 101(2) elements — who, purpose, harm targeted, provision relied on.
- List each requirement and its deadline, and allocate responsibility for each.
- If a requirement is impracticable, apply for a variation under section 101(4) before the deadline, in writing, proposing an alternative.
- Check whether you were operating within your permit — section 101(6) may mean the Order should not have issued.
- Consider a section 68 review within 21 days, and ask for suspension of the decision.
- Check whether section 8 notice of serious or material harm was required and given.
- Keep the evidence of compliance — dated records, photographs, monitoring data, contractor reports.
Sources
- Environment Act 2000 — ss 7, 8, 10, 11, 68, 69, 72, 73, 101–103, 109, 116, 125, 131; Part IX Division 1
- Conservation and Environment Protection Authority Act 2014
- Constitution — ss 41, 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.