Environment Protection Orders – Retrospective requirement ruled out of order by Supreme Court

The Full Court of the Supreme Court decision in Environment Protection Authority v SA Morgan Pty Ltd [2017] SASCFC 164 considers the scope of an environment protection order (EPO) and the Environment Protection Authority’s other powers under the Environment Protection Act 1993. It deals with the limits of EPOs for remedial measures as distinct from merely compliance measures.
 
Morgan owns land on the southern side of the River Murray, between Murray Bridge and Tailem Bend. The northern portion of the land includes a lake and reed bed, which form a part of the Tobalong wetland.
 
Morgan deposited soil from its earthmoving business onto the dry reed bed. EPA officers inspected the land and gave a verbal order to stop depositing further soil onto the reed bed. The EPA then issued a written EPO requiring Morgan to:

  1. immediately cease depositing soil into the Tobalong wetland;
  2. engage an environmental consultant to develop a plan to the satisfaction of the EPA to remove the deposited soil and remediate the affected area, as far as possible, to its original state; and
  3. submit to the EPA a copy of the remediation plan.

The EPA claimed the EPO was issued “for the purposes of securing compliance with a mandatory provision of an environment protection policy”, namely clause 11 of the Environment Protection (Water Quality) Policy 2015 (Policy). It requires that a person “must not discharge a class 2 pollutant [including soil] into any waters or a cavity in land”.
 
Morgan appealed the written EPO to the Environment, Resources and Development (ERD) Court. The question on appeal to the ERD Court (and then the Full Court) was whether the EPO issued to Morgan was really for the purposes of securing compliance with clause 11 of the Policy.
 
Morgan accepted it had deposited the soil on the reed bed, but argued that, as the reed bed was dry, it did not discharge the soil into any “waters”. The ERD Court rejected that argument, but dismissed requirements 2 and 3 of the EPO as being beyond the EPA’s powers under section 93(1)(a)(ii) of the Act.
 
The EPA appealed the ERD Court’s decision to the Full Court of the Supreme Court. The Full Court dismissed the appeal and concluded:

  • Despite using different terminology across the mandatory provisions of the Policy, the discharge of waste or pollutants into “waters” must necessarily include watercourses that are temporarily dry.
  • Clause 11 of the Policy does not create a continuing offence (of leaving a pollutant in place). It prohibits the act of discharging the pollutant, but once done, that is it.
  • At the time the written EPO was issued, Morgan had stopped depositing soil, so the breach of clause 11 of the Policy had “stopped”. There was no continuing offence against the Policy, even if the discharged material was not removed.
  • Because the alleged breach of clause 11 had stopped, it could not be said that requirements 2 and 3 of the EPO were “for the purpose of securing compliance with” the Policy.
  • The EPA’s power to issue an EPO under section 93 of the Act is not intended to have a deterrent effect; it is for the purposes of requiring immediate compliance with a mandatory provision required under the Act, to avoid the risk of environmental damage or harm.
  • Where a policy is expressed in negative or prohibitive terms (“do not discharge waste”) then an EPO cannot be issued in relation to conduct that is historical (and has stopped so it is not continuing). The EPA is provided with appropriate powers for such matters under other sections of the Act, e.g. clean-up orders or rectification orders (noting that, under those provisions, the EPA must first establish that some environmental damage or harm has occurred).

In addition to the compliance orders (such as an EPO), the EPA has various remedial powers (such as clean-up orders and site remediation orders) that it can invoke. Just as in this case, the exercise of those remedial powers also has clear limits. This case emphasises the need to carefully review enforcement orders issued by the EPA to ensure that they are properly and validly issued.
 
If you have any questions about this article please contact James Levinson or Alex Stanley on 8212 9777.