Remedial notice review policy

Purpose

EPA and the role of remedial notices

EPA is Victoria’s environmental regulator under the Environment Protection Act (EP Act). Our job is to protect human health and the environment from pollution and waste. We do this by:

• Working with communities, businesses, and industry to prevent pollution and waste problems
• Taking action against those who break environmental laws
• Helping all Victorians understand their responsibilities under environmental laws
• Giving clear information on the state of our environment so people can make decisions about their health

One way we do our job is by issuing remedial notices. These are legal written instructions requiring someone to take action to fix an environmental problem or comply with the law.

What is an internal review

Internal review is a quick and free of charge process where you can have a remedial notice that has been issued to you by an authorised officer reviewed by us. This review is completed by a qualified person who was not involved in issuing your notice.

A review of the decision to issue the notice means that we can reconsider the information that was relied upon in making the decision to issue a notice and any new information that is made available to us.

If you received a remedial notice, and would like to have its contents reconsidered, you're able to apply for an internal review if the notice meets the criteria set out under ‘Remedial notices’ below.

If you have received an infringement notice, and wish to have it internally reviewed, visit Review your fine. Please also use the infringement notice review form.

Please note that internal review is not used to address complaints about the conduct or behaviour of an authorised officer. If you have a complaint about an officer, follow the process set out in our authorised officer complaints management policy. If your notice was issued by a council authorised officer, your complaint would need to be made to the relevant council.

If you want to apply for an extension of time for any requirement in the notice you must do so at least 10 business days before its due date (3 business days for a prohibition notice), visit Apply for an extension. Your notice remains legally binding until we advise you of any change.

Remedial notices

There are 4 types of remedial notices for which you can ask for a review:

1. Improvement notice - section 271
2. Prohibition notice - section 272
3. Notice to investigate - section 273
4. Environmental action notice - section 274.

If you receive one of these notices and the person who issued it is an ‘authorised officer’, then we can review that notice. You can find that information on page 1 of the notice where it says ‘Notice issued by’. This policy explains your right to have an eligible remedial notice reviewed.

If your notice was issued by a ‘Delegate of the Environment Protection Authority (the Authority)’ then it means the notice was issued by EPA and is not eligible for internal review. Instead, you may ask for the notice to be reviewed by the Victorian Civil and Administrative Tribunal (VCAT).

Council-issued remedial notices

Local councils have been delegated some EPA powers to issue certain remedial notices. Authorised officers appointed by a council can issue improvement notices and prohibition notices that relate to:

• the management of on-site wastewater management systems (e.g. septic systems); and
• noise issues arising from residential construction activities.

Notices issued by council-appointed authorised officers can be reviewed independently by EPA and are covered by this policy.

Who can apply for a review?

You can seek a review of a remedial notice if you are:

• The person who received the notice
• Another person who is authorised to act for the person or company that received the notice.

Applying for a review

You must apply using the official form on our Review a remedial notice page.

There are specific reasons and information that we need you to provide in your application so we can complete the review.

If your application is invalid or incomplete, we'll tell you and your review won’t go ahead.

Examples of invalid applications may include:

• Not using EPA’s internal review form (the form and manner required by EPA)
• An application by someone who was not the person, or not authorized by the person, who received the notice
• An application that seeks to review a decision which is not reviewable under section 429 of the Act
• An application that does not sufficiently identify what decision is being challenged, who is making the application, or is missing an important detail that makes it incapable of undergoing review.

We only have 10 business days to review your notice, so please provide all the information you think we need to consider as part of your review.

When you need to apply

You can request us to review your remedial notice within 10 business days of getting that notice. A ‘business day’ includes Monday to Friday, but does not include a public holiday. The public holidays in Victoria can be found on Business Victoria.

For example:

• If you got a notice on a Tuesday, you would need to submit your review application by the second Tuesday after that (or the second Wednesday if one of the days in between was a public holiday).
• The 10 days starts counting from the day after you officially "received" the notice. This may not be the same date as the date on the front page of the notice.

You need to check carefully the date you received the notice and count 10 business days from the next day.

Rules for notices served by email

Most of our remedial notices are served to an email address that you have provided.

If our notice is emailed to you then your review period starts from the next business day after the notice reached your email inbox (not when you saw it in your inbox). Check your inbox carefully if you are expecting a notice from us.

Rules for notices served personally

Occasionally, we may issue you a notice by delivering it in person, leaving it at an address you provided to us or where your business or company is located.

If an authorised officer hands you the notice in person, then your review application period starts the next business day.

If the officer leaves the notice at one of your addresses because you weren't there, your review application period starts the next business day. This is true even if it takes a couple days for you to see the notice. Let your employees know if you are expecting a notice from us.

Rules for notices served by post

If our notice is mailed to you through the post, then the notice counts as ‘served’ on whatever day it would normally arrive in your mailbox.

For example, if you are mailed a notice on a Thursday, and regular mail takes 3 days to reach your house, the notice is considered received on the next Monday. If so, you would need to submit your review application by the second Monday after that (unless there was a public holiday in between), even if you didn't check your mailbox until Tuesday.

The important date is when the mail would usually be delivered - not when you collect it.

What happens to late applications

If your application for internal review is late, we may still agree to review it if you can provide a reasonable explanation for why it's late and we agree to accept the late application.

To help us decide if we should accept your late application, you should explain:

• Why your application is late, including whether there were reasons for delay outside your control
• What steps you took to submit your application on time
• The reason why you need a review and what outcome you are seeking (are you challenging the reason why the notice was issued or are you asking for an extension of time to comply with one or more requirements)
• If we were to accept the late application whether there would be any disadvantage or injustice to any other person, community, or part of the environment
• What you are doing or may be about to do to fix the problem.

The longer you leave it past the due date, the less likely we are to accept your application. We'll also consider whether the application was made before or after the compliance dates set out in the notice, and the view of the authorised officer who issued the notice.

Putting your remedial notice ‘on hold’ during review

When you apply for a review, you can also ask for a stay of your notice. This means putting the remedial notice ‘on hold’ while we review it. For example:

• An improvement notice to fix a problem would be paused while under review. You wouldn't have to do the fixes yet.
• A prohibition notice to stop an activity would be paused. You could keep doing the activity while it's reviewed.

If you make an application for a stay, you need to explain why complying with the remedial notice during the review period would be unfair or unreasonable.

We'll decide if your notice should be ‘stayed’ while your notice is under review. We can also impose conditions that apply during the review if EPA grants you a stay.

We'll consider the following matters if you ask for a stay:

• If granting a stay defeats the purpose the remedial notice is trying to achieve. For example, staying a prohibition notice may expose human health or the environment to an unacceptable risk of harm during the notice review period.
• If not granting a stay means that you would have to make changes which could not later be reversed.
• Who would suffer the greater prejudice or harm if the stay was not granted – you or the community/environment protected by a remedial notice remaining in force.
• If the impact of the remedial notice remaining in force during the review adversely affects you disproportionately to the risks addressed by the notice.
• What (if any) measures are proposed by you to reduce any risks of harm to human health or the environment during the review period if a stay were to be granted.

The time in which we must make a decision on a stay request will depend on when you apply:

• If you apply for a stay before 5 pm on a business day you will be told of the outcome within 48 hours of applying (excluding any non-business days that may fall within that period).
• If you apply after 5 pm on a business day, or any time on a non-business day, you will be told of the outcome by 5pm of the second business day after your application.

If EPA does not make and communicate a decision on the stay application within this time EPA is taken to have made the decision to grant the stay.

If we refuse to stay the notice or you don’t agree with any conditions, then you can ask VCAT to review that decision within 15 business days.

The stay of the notice ends when the remedial notice review decision is made (including if the decision is to affirm the notice without any changes).

How long does the review take?

We have strict deadlines to review a remedial notice:

• We must make a decision within 10 business days after the day you apply.
• By the 10th business day, we must provide you with the outcome of EPA's decision and reasons for that decision.

For example, if you apply for a review on a Wednesday, you'll receive our decision by the second Wednesday after that at the latest (provided there are no public holidays in that period).

If we don't meet this deadline, it automatically means the decision to issue the notice is affirmed and remains enforceable. So even if you don't hear from us, you still have to comply with the notice after 10 business days.

What rules do we follow when reviewing?

Fair and independent reviews

We're guided by good decision-making principles, including:

• Consistency, for example by considering relevant EPA policies, procedures, position statements or guidance.
• Procedural fairness.
• Relevance, for example we will take into account relevant matters, and will not take into account irrelevant matters.
• Avoiding bias and conflicts of interest.

EPA is fair and independent when reviewing decisions. The internal review officer::

• must be someone at EPA who was not part of the original decision.
• will look at the EP Act's objectives, principles, and the all the relevant information, including any new information you provide, when making a decision.
• must give written reasons explaining their decision.

The internal review officer will also look for opportunities to improve our processes and capabilities over time.

Nature and scope of the review

The EP Act does not specify the grounds for reviewing a remedial notice, or the way in which a review is to be conducted.

We'll conduct a ‘merits review’ of the original decision to issue the notice. This means the internal review officer ‘steps into the shoes’ of the authorised officer that issued the notice and considers the decision afresh. We'll look at:

• the material available to the authorised officer at the time they issued the notice; and
• any relevant information available at the time of the review, including new information provided by you.

The internal review officer may consider:

• What you provide in your application
• Documents and photos relied on in issuing the notice
• Relevant EPA policies and guidance, including the Compliance and enforcement policy (Publication 1798)
• Talking to the authorised officer about what happened
• Talking to technical experts to obtain additional information.

The internal review officer will generally focus the review on the specific concerns that you have raised about the notice.

The internal review officer has tight legal deadlines, so you should include your full case in your application. Where there is sufficient time left, the internal review officer may ask you questions and request that you reply quickly. If additional information is obtained which could adversely affect your position, the internal review officer may make you aware of the substance of the information and provide you an opportunity to comment. The time frame for receiving any reply must fit within the ten business days permitted for reviewing a decision and allow the internal review officer sufficient time to take that response into account. The review deadlines cannot be extended.

The internal review officer will decide what is the ‘correct and preferable’ outcome in the circumstances by considering:

• the EP Act section governing internal reviews (section 429)
• the sections governing the type of remedial notice issued (sections 271-274 and 279)
• any specific sections referred to in the remedial notice itself (e.g. the general environmental duty in section 25)
• EPA’s objectives as set out in the EP Act
• the principles of environmental protection in Chapter 2 of the EP Act.

Our primary objective is to protect human health and the environment by reducing the harmful effects of pollution and waste (section 357). We must exercise our powers and perform our duties and functions for the purposes of achieving this primary objective.

The EP Act also sets out objectives for the management of litter and waste, to promote waste reduction, resource recovery and resource efficiency, and to minimise impact from waste (section 111).

What a review officers can decide

Within 10 business days of your application, the internal review officer must decide to:

• Affirm the original decision, which means agreeing with the original notice without any changes
• Vary the original decision, which means changing one or more parts of the original notice by making amendments
• Set aside the original decision, which means revoking the original notice
• Substitute the original decision with a different decision, for example, revoking the original notice and replacing it with a different type of notice, or replacing it with the same notice type on different grounds.

The internal review officer must provide a written statement of reasons, explaining their decision.

If the review decision is to affirm or vary the notice, or substitute it with a new notice, you must comply with the notice requirements within the specified timeframes.

After the internal review decision has been made, compliance with the notice requirements will be assessed by an authorised officer in the relevant EPA team or council, not the internal review officer.

When is an internal review discontinued?

Can a review application be withdrawn?

You can seek to withdraw your application for internal review at any time by writing to the Internal Review Unit. This may happen for many reasons, including that you have complied with the remedial notice under review in the meantime.

Acceptance of a request to withdraw a review application will be at the discretion of the internal review officer.

What happens if the notice is revoked?

If the remedial notice under review is revoked by the authorised officer or EPA during the review period, then the need for an internal review is removed and you will be notified that the internal review has been discontinued.

Appealing our decision at VCAT

If you disagree with our internal review decision, you can ask VCAT to review it.

Once we communicate our internal review decision you have 15 business days to appeal to VCAT. In the event EPA has not notified you of a decision and the notice is automatically affirmed after 10 business days, you have 15 business days to appeal to VCAT from the day the decision should have been made.

The outcome of the VCAT process will be a new decision as issued by VCAT, which will be one of the following:

• affirm the internal review decision
• vary the internal review decision
• set aside the internal review decision with no new notice issued
• set aside the internal review decision and substitute it with a new notice or new notices, or
• set aside the internal review decision and return the matter to EPA for re-consideration in accordance with any directions or recommendations of VCAT.
  

Amended notices eligible for internal review

In some situations, an EPA or council authorised officer may amend a remedial notice.

If an authorised officer amends a notice you received, you have 10 business days from when the amendment was made to seek internal review of the amended part of the notice. A review of an amended notice can be made the same way as seeking a review of the original notice, explained earlier in this policy.

The internal review officer will examine if those specific changes are correct and preferable. They will not consider parts of the original decision that have not been amended.

Requesting an extension of time or other amendment

Beyond the right to seek internal review of a remedial notice, section 279 of the EP Act sets out other ways that a remedial notice may be amended.

These amendments are separate to internal review and are managed by authorised officers rather than internal review officers. While internal review applications must be submitted within 10 business days from the day after a remedial notice was served, applications for extension of time or amendment of requirements can be submitted at a later time as outlined on the Extend or Amend remedial notice webpage. For notices issued by a council authorised officer you must contact the relevant council to request an amendment.

If the authorised officer, EPA or council refuses your amendment request, you can apply to the Supreme Court for judicial review of that decision. This means that the Supreme Court cannot reconsider the decision but can only decide if the notice was lawful or not.