The South Australian Supreme Court finds that the EPA’s power to require remediation under an Environment Protection Order (EPO) is invalid.

In the recent matter of Environment Protection Authority v SA Morgan Pty Ltd [2017] SASCFC 164 the South Australian Supreme Court considered the EPA’s powers under the Environment Protection Act 1993 (EP Act) to impose requirements under an EPO.

In this case, earthworks operator SA Morgan Pty Ltd (Morgan) deposited soil onto an area of land it owned which formed part of the Tobalong wetland adjacent to the River Murray. The EPA issued Morgan with a verbal EPO in late February followed by a formal written EPO in March 2016 under section 93 of the EP Act. The EPO was issued to prevent the discharge of a class 2 pollutant (which includes soil) into any waters or a cavity in land under clause 11 of the Environment Protection (Water Quality) Policy 2015 (WQP). Specifically, the EPO required Morgan to:

  • cease depositing soil into the Wetland;
  • engage an environmental consultant to develop a remediation plan, to the EPA’s satisfaction, regarding the removal of the already deposited soil;
  • remediate the affected area to its original state as far as reasonably practicable; and
  • submit a copy of the plan to the EPA.

Morgan appealed the validity of the EPO to the ERD Court on grounds including that the requirements of the EPO relating to preparation and submission of a remediation plan were beyond the EPA’s powers under section 93 of the EP Act. The basis of Morgan’s case was that the contravening conduct was an historical act and the EPO was therefore incapable of being “reasonably required” to “secure compliance with” clause 11 of the WQP (as required by section 93). Morgan was successful in its appeal, with the ERD Court finding that the requirements of the EPO relating to remediation were beyond the powers of section 93 of the EP Act and lacked certainty.

The EPA appealed the decision to the Supreme Court of South Australia.

The Supreme Court dismissed the EPA’s appeal, finding that while section 93(2) allows for an EPO to impose requirements such as a requirement to prepare a plan to prevent, minimise or control pollution or waste, section 93 does not empower an EPO to be made where the prohibited action has already occurred and is complete.

Of even broader consequence, the Supreme Court found that by its nature, section 93(1) provides that an EPO is to be directed at securing immediate compliance with the mandatory provision in question and not to matters such as remediation or deterrence. This is because the EP Act confers remediation powers in other sections of the Act and the Supreme Court found that it was unlikely that the legislature intended that the EPA should be able to circumvent those provisions (which require environmental harm to be established as a pre-condition to taking enforcement action) by utilising section 93 to require remediation.

Whether the requirements of an EPO can be said to be “reasonably required” to “secure compliance” with a relevant mandatory provision will likely depend on a number of factors including:

  • the nature of the contravention alleged and, in particular, whether it relates to provisions prohibiting certain actions from being taken or provisions requiring certain action to be taken under the EP Act; and
  • whether the conduct the subject of the contravention can be said to be historical and complete or continuous.

A likely effect of the decision is that the EPA will no longer be able to justify imposing any requirements relating to remediation under an EPO. Rather, the EPA will likely have to rely on its ability to issue clean-up orders, site remediation orders or apply to the ERD Court for a relevant order in accordance with the EP Act.

This case serves as a good reminder to anyone issued with an EPO to always consider its full terms and effect, and seek professional advice as to whether the EPO is in fact valid.