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 rapid, informal 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 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.

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, or contact 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. 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 referred to as 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”, 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

Councils (as defined by section 3 of the Local Government Act 2020) 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 related 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 by us under 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.

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 only require 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 delivered by email

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

If our notice is emailed to you then your review period starts from the 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 delivered 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 find the notice.

Rules for notices delivered by post

If our notice is mailed to you through the post, then the notice counts as "received" 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 that it should 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
• Why you still need a review (note: that you can ask for an extension of time to comply with one or more requirements)
• why submitting a late application will not cause any disadvantage or injustice to any other person, community, or part of the environment if we accept the application out of time
• 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. 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.

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). You need to explain why complying with the remedial notice during the review period would be unfair or unreasonable. For example:

• It might shut down a business during peak season
• It might leave you unable to accept a new contract while your notice is being reviewed
• A requirement to install new equipment may be found to be unnecessary by the reviewer
• You have installed interim measures to adequately manage the problem.

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 it grants you a stay.

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

• Would granting a stay defeat 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?
• Would not granting a stay result in changes made by the notice recipient which could not later be reversed if their review was successful?
• Who would suffer the greater prejudice or harm if the stay was not granted – the notice recipient, or the community/environment protected by a remedial notice remaining in force?
• Would the impact of the remedial notice remaining in force during the review adversely affect you, disproportionately to the risks addressed by the notice?
• What (if any) measures are proposed 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 on a business day you will be told of the outcome within 48 hours of applying for review (excluding any non-business days that may fall within that period).
• If you apply after 5:00pm on a business day or on a non-business day you will be told of the outcome by 5:00pm of the second business day after your application.

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.

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 its 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.

If we don't meet these deadlines, 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
• Procedural fairness
• Relevance
• Avoiding bias and conflicts of interest.

We promise to be fair and independent when reviewing decisions. Here's how:

• The officer who completes your review must be someone at EPA who was not part of the original decision.
• The review officer 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.
• The review officer has to give written reasons explaining their decision.

The 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 review officer ‘steps into the shoes’ of the authorised officer and considers the decision afresh. They'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 reviewing officer may consider:

• What you provide in your application
• Documents and photos relied on in issuing the notice
• Relevant EPA guidance and rules
• Talking to the authorised officer about what happened
• Talking to technical experts to obtain additional information.

The reviewer has tight legal deadlines, so you need to include your full case in your application. The reviewer may ask you questions by email where there is sufficient time left and request you reply quickly. Also, if additional information is obtained by the review officer which may adversely affect the applicant’s position, the review officer will make the applicant aware of the substance of the information and provide them an opportunity to comment on that information.

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

• the provisions governing reviews in the EP Act (s 429)
• the provisions governing the type of remedial notice issued (ss 271-274 and 279)
• any specific provisions cited in the remedial notice itself (e.g. the GED in s 25)
• the EP Act objectives and 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 (s 357). We must exercise its powers and perform its duties and functions for the purposes of achieving this primary objective (ss 358 and 359).

The EP Act also sets out objectives for the management of waste and recoverable materials to meet the primary objective of protecting human health and the environment, and support and encourage waste reduction and increase resource recovery from waste. These are set out in s 111 of the EP Act and apply to the matters covered in Chapter 6.

Finally, we will consider any of its policies that are relevant to the use of remedial notices, including its:

• Compliance and enforcement policy (Publication 1798.2)
• Remedial powers policy (Publication 1813)

What a review officers can decide

Within 10 business days of your application, the 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 withdrawing the original notice
• Substitute the original decision with a different decision, for example, withdrawing the original notice and replacing it with a different type of notice, or replacing it with the same notice type on different grounds.

The review officer must provide written reasons explaining their decision when they communicate the outcome.

If the review decision is to affirm or vary the notice or substituted 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 Region 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 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 review officer.

What happens if the notice is revoked?

If the remedial notice under review is revoked by the authorised officer 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 decision on your review application, you can ask VCAT to review the decision made by the internal review officer.

You have 15 more business days to appeal to VCAT after we communicate our decision.

At VCAT, we'll appear in response to your review application and assist VCAT to make a new decision.

After examining all evidence and arguments on both sides, VCAT will either:

1. Uphold our decision (rule against you)
2. Overturn our decision (rule in your favour)
3. Send it back to us to reconsider.

Amended notices

In some situations, an EPA or council authorised officer may amend a remedial notice under s 279 of the EP Act to:

• extend the period during which the person must comply with the notice if satisfied that the circumstances justify an extension; or
• revoke or amend any requirement specified in the notice, for example when new information justifies amending notice requirements.

If an authorised officer amends a notice you received, you have 10 business days from when the amendment was made to seek 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 review officer will examine if those specific changes are correct and preferrable. They will not consider parts of the original decision that have not been amended.

Requesting an extension of time of other amendment

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

These processes are separate to internal review and are managed by authorised officers rather than internal review officers. While internal review applications must occur within 10 business days from the day after a remedial notice was served, applications for extension of time or amendment of requirements can occur at a later time as outlined below.

When considering such a request, the authorised officer will consider if the proposed amendment would:

• Increase environmental protection
• Reduce risks more effectively
• Help clarify what is required to comply with the notice

The authorised officer will also consider whether you have already taken action to comply with the notice, and whether there are circumstances outside of your control such as weather or supply delays.

To request an amendment, including an extension of time, you should:

• For EPA notices, complete the extension of time form at least 10 business days before your compliance deadline (or at least 3 business days before the deadline for a prohibition notice). If you have access issues and cannot apply online, you can contact the Internal Review Unit on 1300 372 842 or internalreviews@epa.vic.gov.au
• For council notices, contact the issuing officer at council with the request for amendment.
• Explain your proposed changes to the notice requirements including proposed new timeframes.
• Explain what actions you have taken to comply with the notice, any factors beyond your control that have meant you are unable to comply with the notice, and evidence that better long-term environmental outcomes would be achieved by amending the notice.
• Provide any documents and data to support your request.

If the authorised officer refuses your amendment request, you can apply to the Supreme Court for judicial review of that decision.