Appeals against investigation and clean up notices

• Format of appeals to the Committee against investigation and clean up notices
• Who is eligible to appeal against an investigation or clean up notice
• Time limit for lodgement of appeals to the Committee against investigation or clean up notices
• Fees
• Procedure of the Committee

Format of appeals to the Committee against investigation and clean up notices

Section 79 of the Contaminated Sites Act (the Act) prescribes that an appeal against an investigation or clean up notice under section 52 of the Act is instituted by lodging written notice of the appeal to the Committee setting out the grounds and facts on which the appellant relies.

For appeals to be accepted by the Committee, they must:

• be in writing;
• clearly identify the matter or decision being appealed;
• clearly set out the grounds and facts on which the appellant relies;
• be accompanied by the correct appeal fee as specified in section 65 of the Contaminated Sites Regulations 2006 (the Regulations);
• be signed by the appellant; and
• be lodged at the office of the Contaminated Sites Committee within the time prescribed under section 79 of the Act .

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Who is eligible to appeal against an investigation or clean up notice

The Act and Regulations set out the nature of appeals that may be made to the Contaminated Sites Committee, and who is eligible to lodge an appeal with the Committee.

Section 52 of the Act provides that:

1. "Subject to subsection (5), a person on whom an investigation notice or a clean up notice is binding may appeal against a requirement of the notice.
2. Subject to subsection (3), a person may appeal against a decision of the CEO-
   (a) under section 42(1) to give the person a notice; or
   (b) under section 54(1)(d) that a notice is binding on the person.
3. A person -
   (a) who is an owner or occupier of a site to which a notice relates, other than an owner or occupier on whom a notice is binding as a result of a decision made under section 54(1)(d); or
   (b) who is responsible for remediation of a site to which a notice relates,
   may not appeal against a decision referred to in subsection (2).
4. Subsection (3)(b) does not affect the right of a person to appeal under section 40.
5. An appeal is to be brought, dealt with and determined in accordance with Part 8."

If you are unsure about your eligibility to appeal against an investigation or clean up notice under the Act, you may wish to seek legal advice before proceeding.

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Time limit for lodgement of appeals to the Committee against investigation or clean up notices

Under section 79 of the Act, an appeal against a regulatory notice is to be lodged within 21 days after the day on which a notice is given to the appellant by Department of Environment and Conservation (DEC), or 21 days after the day on which a notice becomes binding on the person, or such later time as may be specified in that notice.

Fees

If you appeal to the Contaminated Sites Committee against the issue or a requirement of an investigation or clean up notice, you are required to pay a fee at the time of lodging your appeal with the office of the Contaminated Sites Committee. The fee is a prescribed fee under section 65 of the Contaminated Sites Regulations 2006. Currently the prescribed fee is $45.

The Committee may decide to waive or reduce a fee if paying that fee would cause you financial hardship. If you wish to apply for a fee to be waived or reduced, you will need to provide a written statement to the Committee, along with your appeal, setting out the reasons why the fee should be waived or reduced.

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Procedure of the Committee

Section 34 of the Act requires the Committee, when making a decision under the Act, to -

(a) consult the Chief Executive Officer (CEO) of the Department of Environment and Conservation (DEC) and any other person it considers necessary to consult; and
(b) act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms, not to be bound by the rules of evidence and to conduct its enquiries in any manner it considers appropriate.

When an appeal is lodged the Committee is required to request the CEO of DEC, and if considered necessary, the Chairman of the Environmental Protection Authority, to report to the Committee on the issues raised in the appeal. The Committee may request the CEO of DEC to consult the appellant and any other appropriate person to determine whether or not the point at issue in the appeal can be resolved.

Upon receiving all of the information in relation to an appeal against a regulatory notice, the Committee may -

a) affirm the decision or requirement appealed against;
(b) substitute or vary the decision or requirement appealed against; or
(c) set aside the decision or requirement and make a decision or substitute a requirement or notice that the Committee believes is just.

The Committee will give written notice of its decision, and the reasons for its decision, to the appellant, any other affected persons and the CEO of DEC. Under the Act, the CEO is required to give effect to the outcome of an appeal.

The Committee's decision in relation to appeals against investigation or clean up notices is final and without further appeal.

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