Clean-up and prevention notices in NSW: compliance, cost and review

A notice from the NSW Environment Protection Authority (EPA) or a council should be classified before it is answered. Record the issuer, recipient, date and method of service, statutory basis, each required action and each deadline. The label used in a covering email is not decisive. Clean-up, prevention, prohibition, preliminary investigation, recall and information notices arise under different powers. They may be directed to different people and carry different compliance and review consequences.

Seeking clarification, variation or more time does not itself alter an operative notice. Nor does a prevention-notice appeal or judicial-review application automatically stay it. Evidence preservation must proceed alongside, and must not delay, containment, implementation of any pollution incident response management plan (PIRMP), mandatory notification or action required by the notice.

This article concerns clean-up and prevention notices under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). Pollution-incident notification is addressed separately. What the recipient must do depends on the wording of the notice and the law under which it was issued.

The first response: compliance and review run together

The response should begin at once:

• address safety, containment, pollution control and any mandatory action;
• confirm the recipient, issuer, delegation, statutory power, method of service and each operative deadline;
• turn each direction into a task with an owner, deadline, dependency and evidence requirement;
• engage appropriately qualified environmental, engineering, occupational hygiene or other experts;
• coordinate sampling or physical work that may disturb evidence with those experts, without delaying measures needed to control harm;
• preserve samples, monitoring data, photographs, site logs, waste records, correspondence and chain of custody;
• establish one verified chronology, including what was known and when;
• identify any overlapping licence condition, pollution-incident duty, workplace-safety obligation, planning approval or contaminated-land obligation;
• assess whether each direction is clear and can safely be completed in time;
• decide what should be clarified or negotiated while preserving the recipient’s legal position;
• establish appropriate arrangements for legal professional privilege and expert reporting;
• record the compliance date, every review deadline and the date or event that starts each period; and
• provide progress reports in the form and at the intervals the notice requires.

If a direction is unclear or cannot safely be completed in time, raise the issue early and support the request with evidence. Section 110 permits the Minister, or the regulatory or public authority that gave the notice, to revoke or vary it by a subsequent notice. A variation may extend the time for compliance and does not attract a fee. A request alone changes nothing.

Environment Protection Authority v Pullinger (No 2) [2024] NSWLEC 51 provides the practical example. The contested prosecution arose under former section 91(5) of the POEO Act, as in force on 16 November 2020, with a separate charge under historical section 102. Pritchard J said at [307] that the reasonableness of an excuse should be assessed “having regard to all the surrounding circumstances and the purpose of the legislation”, and that the clean-up-notice power exists “to facilitate the rapid clean-up of a pollution incident”.

For the two clean-up directions, technical and financial inability had not been established, and no application had been made to extend the time for compliance: [308]–[318]. The Court found Mr Pullinger guilty on all three charges and listed the matters for sentence: [321]–[323]. Although the judgment applies former provisions and is not appellate authority, its practical lesson remains current: if the required work cannot be completed safely or by the deadline, tell the authority before the deadline expires and provide evidence explaining why.

Clean-up and prevention notices do different work

A clean-up notice responds to a suspected pollution incident

Section 91(1) allows the appropriate regulatory authority to direct specified clean-up action within a specified period where it reasonably suspects that a pollution incident has occurred or is occurring. The notice may be directed to:

• an owner or occupier of premises at or from which the incident is reasonably suspected to have occurred or be occurring;
• a person reasonably suspected of causing or having caused the incident; or
• a person reasonably suspected of contributing to the incident, to any extent.

The authority must hold the suspicion, and there must be an objectively reasonable factual basis for it. The authority need not first prove who caused the pollution.

The position of a contributor requires particular care. Sections 91(1A) and 91(1B) permit a notice to be given to a contributor even if no notice has been given to anyone else and regardless of whether another person also contributed. The notice may require that person to undertake the complete clean-up, “irrespective of the nature or extent of the person’s contribution to the incident”.

In Environment Protection Authority v Matthew Alexander Brain [2026] NSWLEC 56, Preston CJ noted at [2] that a person who had contributed 10 tonnes of approximately 170 tonnes of asbestos waste had been directed to arrange removal of the whole amount. His Honour observed that the course was authorised by section 91(1)(c), although it imposed a disproportionate burden and cost. The judgment concerned sentencing for the later offence under section 251 of failing to comply with a Local Court order; it did not determine a contested challenge to the notice’s validity.

The power to require one contributor to undertake the whole clean-up does not enlarge the permissible scope of the clean-up itself. In Precision Products (NSW) Pty Limited v Hawkesbury City Council (2008) 74 NSWLR 102; [2008] NSWCA 278, the Court of Appeal held that the required action must bear a reasonable and proportionate relationship to the pollution incidents reasonably suspected: [159]–[161]. That rule concerns the relationship between the incident and the work required, not the allocation of responsibility among contributors; section 91(1B) addresses the latter question.

In an emergency, the EPA may give a clean-up notice even if it is not the appropriate regulatory authority. A clean-up notice may also require progress reports.

A clean-up direction may be given orally. Section 93(3) states:

“A direction given orally to a person ceases to have effect on the expiration of 3 business days from the time it was given unless confirmed by the regulatory authority who gave the direction orally by a written clean-up notice given to the person.”

Until then, the oral direction has the same effect as a written clean-up notice: section 93(4).

Since 12 December 2025, the appropriate regulatory authority that gave a clean-up notice may also give an ancillary direction under section 91AA. The power is available where the authority reasonably believes a restriction is needed either to allow the clean-up or because there is a risk to human health from the substance that is the subject of the pollution incident for which clean-up action must be taken.

The direction may control entry or exit, access to the substance or an activity involving it. It takes effect on publication on a NSW Government website or, in an emergency, when prominently displayed in or adjacent to the premises. An emergency direction must then be published on a NSW Government website as soon as practicable.

At present, only the appropriate regulatory authority can give an ancillary direction. The Environmental Legislation Amendment (Plastic Reduction and Container Recycling) Bill 2026 (NSW) would extend that power to the EPA where the EPA gave the clean-up notice, even if it is not the appropriate regulatory authority. It would also let the EPA recover compliance costs under section 104 in that situation. The Bill passed the Legislative Assembly. As at 30 September 2026, the Parliament’s bill page showed it at the second-reading stage in the Legislative Council. It is not law unless it passes both Houses and commences.

Failure to comply with a clean-up notice without reasonable excuse is an offence under section 91B.

A prevention notice changes how an activity is carried on

A prevention notice is forward-looking. Section 95 provides:

“For the purposes of this Part an activity is carried on in an environmentally unsatisfactory manner if—

(a) it is carried on in contravention of, or in a manner that is likely to lead to a contravention of, this Act, the regulations or a condition attached to an environment protection licence (including a condition of a surrender of a licence) or an exemption given under this Act or the regulations, or

(b) it causes, or is likely to cause, a pollution incident, or

(c) it is not carried on by such practicable means as may be necessary to prevent, control or minimise pollution, the emission of any noise or the generation of waste, or

(d) it is not carried on in accordance with good environmental practice.”

Where the appropriate regulatory authority reasonably suspects that an activity has been or is being carried on in one of those ways, section 96 permits a written notice to the occupier, the person carrying on the activity, or both. It may require specified action within the period, if any, stated in the notice to ensure that the activity is carried on in future in an environmentally satisfactory manner. The action may concern plant, procedures, monitoring, reporting and other operational matters.

If the occupier is not the person carrying on the activity, the notice is taken to require the occupier to take all available steps to cause the action to be taken. When determining the action in a notice relating to an activity that causes, is likely to cause or has caused water pollution, the authority must consider the affected water’s environmental values, practical measures to restore or maintain them and, where the authority is not the EPA, any relevant EPA guidelines: section 96(3A).

Failure to comply with a prevention notice is an offence under section 97. Unlike section 91B, the provision contains no express reasonable-excuse qualification.

In Environment Protection Authority v Clarence Colliery Pty Ltd [2026] NSWLEC 13, Pain J imposed a $105,000 penalty for a section 97 offence: [141]. It was a guilty-plea sentencing decision on its own facts, not a penalty benchmark or authority on notice validity.

Corporate non-compliance may extend beyond the company

Where a corporation fails to comply within the specified period, the appropriate regulatory authority may give a written supplementary notice under section 91A or section 96A to one or more current or former directors or related bodies corporate.

A supplementary clean-up notice may require them to carry out or ensure the clean-up action. The EPA may give it in an emergency even if it is not the appropriate regulatory authority. A supplementary prevention notice may require specified action to ensure the activity is carried on in future in an environmentally satisfactory manner, and the authority must consider section 96(3A). Under both provisions, “director” includes a person involved in managing the corporation’s affairs.

Cost exposure follows distinct statutory routes

The work required by the notice is only one part of the possible cost.

Administrative fee. Section 94 and section 100 impose prescribed fees for clean-up and prevention notices. The fee is due within 30 days. The regulatory authority may extend the payment period on the recipient’s application. It may waive all or part of the fee either on its own initiative or on application. Non-payment within the applicable time is an offence.

A prevention-notice fee is not payable while an appeal is current. If the Court does not invalidate the notice, it is due within 30 days after the decision. No fee is payable for a variation: section 110(5).

Compliance cost notice. The appropriate regulatory authority that gave a clean-up or prevention notice may give its recipient a separate written compliance cost notice under section 104(1) or section 104(3). It may claim all or part of its reasonable costs and expenses of monitoring action under the notice, ensuring compliance and dealing with associated or incidental matters. The last category can include costs incurred in connection with an associated matter before the clean-up or prevention notice was given: section 104(5).

Public-authority clean-up. A public authority that takes clean-up action under section 92 may give a written notice under section 104(2) requiring all or part of its reasonable clean-up costs to be paid by the occupier of the premises at or from which it reasonably suspects the pollution incident occurred, a person it reasonably suspects caused or contributed to the incident, or both.

Action following non-compliance. Where a regulatory authority takes action because a prevention or prohibition notice was not complied with, section 104(4) permits it to require the person to whom that notice was given to pay all or part of its reasonable costs and expenses of taking the action.

Slade v Kempsey Shire Council [2018] NSWCA 25 shows why the statutory route matters. The Court of Appeal held that the council’s recovery rights under section 104(2) and section 105(1) did not depend on full compliance with the EPA’s direction. The council’s clean-up action was independently authorised by section 92(2): [24]–[28]. In any event, section 104(2) requires only that the clean-up action was taken under section 92, not full compliance with a direction under section 92(1): [29] (Macfarlan JA, McColl JA agreeing at [1]; Barrett AJA agreeing at [38]).

An unpaid amount in a compliance cost notice is recoverable as a debt under section 105(1). A recipient that pays but did not cause or contribute to the pollution or pollution incident may have a right to recover under section 105(2).

A clean-up-notice recipient that complies, but did not cause the incident or was not its sole cause, may also have a right under section 91(4) to recover all or part of its compliance costs from another person who caused or contributed to it. Section 91A(5) provides a corresponding right for a supplementary clean-up notice.

Registration may affect different land depending on the instrument. A clean-up or prevention notice may be registered under section 108B in relation to the land to which the notice relates. A compliance cost notice may instead be registered under section 106 against any land owned by its recipient. That registration creates a statutory charge under section 107 securing the amount in the compliance cost notice. Either form of registration may affect transactions, financing and due diligence.

The notice determines the review route, and neither route automatically stays it

A prevention notice carries a merits appeal

Section 289(1) states:

“A person served with a prevention notice may, within 21 days (or such other period as is prescribed instead by the regulations) after being served with the notice, appeal to the Land and Environment Court against the notice.”

The appeal does not itself suspend compliance. Section 289(1A) states:

“The lodging of an appeal does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay the notice appealed against.”

For the purposes of section 289, a prevention notice includes a notice varying it; there is no appeal against a decision to extend the compliance period. The notice or variation operates from the day it is given, or a later stated day. If the Court grants a stay, the notice or variation remains inoperative until the stay ends, the Court confirms the notice or the appeal is withdrawn, whichever occurs first: section 99(2).

The appeal is a merits review. The Court re-exercises the authority’s functions on the evidence before it: section 17(a) and section 39 of the Land and Environment Court Act 1979 (NSW).

In Doon v Snowy Valleys Council [2025] NSWLEC 1514, a merits appeal concerning a noise prevention notice, Dickson C found at [112] that there was “insufficient evidence before the Court to support the power to issue a prevention notice” and revoked it at [114]. As a fact-specific Commissioner’s decision, Doon shows how evidence is assessed on a merits appeal but is not appellate authority.

A clean-up notice has no equivalent merits appeal

The POEO Act does not provide an equivalent merits appeal from a clean-up notice. Judicial review may be available where the issue is legality: for example, whether the statutory precondition existed, the decision-maker acted within power, procedural fairness was afforded, or another jurisdictional error occurred. It is not a rehearing of whether the Court would have issued a different notice.

In Precision Products (NSW) Pty Limited v Hawkesbury City Council (2008) 74 NSWLR 102; [2008] NSWCA 278, Allsop P (Beazley JA and McColl JA agreeing at [199] and [200]) held at [153] that the POEO Act “does not contain in its terms a removal of the obligation to afford procedural fairness”.

The content of that obligation depends on the circumstances. In Liverpool City Council v Cauchi (2005) 145 LGERA 1 at 12 [51]; [2005] NSWLEC 675, McClellan CJ said:

“There will be cases where a pollution incident has occurred which requires urgent attention or where it is continuing to occur and immediate response may be required. In those circumstances, there may be only confined obligations which have to be fulfilled before an effective notice can be given. Each case will depend upon its own facts.”

Allsop P adopted that approach in Precision Products at [154]–[155]. On the facts, the council should have identified its concerns and given the recipient an opportunity to respond, and the notice was invalid for want of procedural fairness: [156]–[157]. The proceeding before the Court of Appeal was a negligence and damages appeal, and procedural invalidity did not establish negligence: [158]. The appeal was ultimately dismissed: [192], [198].

In Maund v Shoalhaven City Council [2019] NSWLEC 89, a rehearing appeal from a Local Court conviction, Preston CJ found that the council had not formed the required subjective suspicion: [26]. His Honour also held at [31]:

“The evidence provided no basis on which a reasonable regulatory authority, in the position of the Council, could suspect that a pollution incident had occurred or was occurring at the premises, so as to enliven the power to issue a clean-up notice.”

The Court held the notice invalid and set aside the conviction: [32]. The proceeding was a rehearing appeal concerning the former offence provision, not judicial review.

Validity can also arise within a prosecution. In Environment Protection Authority v Eastern Creek Operations Pty Limited [2022] NSWCCA 97, Fullerton J, in the majority (Lonergan J agreeing at [219]), held that an essential condition of criminal liability may, in an appropriate case, be determined at a preliminary hearing under section 247G of the Criminal Procedure Act 1986 (NSW), particularly subsection (3)(f): [209], [216]–[218]. The case concerned a compulsory-information notice, not a clean-up notice, and is no substitute for deciding promptly how to respond to an operative notice.

An application for judicial review does not itself suspend a clean-up notice. A stay or other interim order must be sought and obtained. Compliance and review strategy must therefore proceed together.

Transitional rules and other statutory instruments

Some reforms reach earlier notices, incidents and costs

The Environmental Legislation Amendment Act 2025 (NSW) received assent on 23 September 2025, and most of its amendments to the POEO Act commenced on 12 December 2025. Its transitional rules are in Schedule 5 Part 23. Clause 84 extends section 91AA to clean-up notices given before 12 December 2025. Clause 86 extends section 108B to clean-up and prevention notices in force immediately before that date. Clause 85 extends amended section 93(3) to pollution incidents that occurred before the amendment commenced. Clause 83 extends the cost-recovery amendments it lists to EPA or council costs incurred before those amendments commence. Not every amendment it lists has commenced: as at 30 September 2026, items [28] and [29] of Schedule 9 to the 2025 amending Act, which concern the costs of preliminary investigation notices, had not. The commencement of the particular amendment must therefore also be checked.

The preliminary-investigation and recall regimes were inserted by the Environment Protection Legislation Amendment (Stronger Regulation and Penalties) Act 2024 (NSW) and commenced on 3 April 2024. Clauses 60 and 61 of Schedule 5 Part 20 apply them to circumstances, pollution incidents and recall grounds that arose before that date.

Preliminary-investigation, recall and Chapter 7 powers

Section 90B allows the EPA to issue a preliminary investigation notice if it reasonably suspects that “relevant circumstances” may exist or have existed at premises. Those circumstances include a pollution incident and circumstances that may pose a potential risk of harm to human health or the environment from a substance, or from the deposit of waste or substances suspected of being waste.

Amendments made in 2025 but not yet commenced as at 30 September 2026 would extend this power beyond the EPA, and would make failure to comply with a preliminary investigation notice or a recall notice an executive liability offence for directors and managers. The Act’s status information lists the uncommenced items. The Plastic Reduction and Container Recycling Bill 2026, described above under ancillary directions, would also change how the uncommenced preliminary-investigation amendments allocate that power.

With the Minister’s approval, the EPA may issue a recall notice on one or more of the grounds in section 94B. A recall notice may apply to any participant in the substance’s supply chain: section 94D. Neither instrument should be treated as an ordinary clean-up or prevention notice.

Information notices, interviews, entry and investigation powers under Chapter 7 of the POEO Act are also separate. A compulsory demand for information or answers may engage different deadlines, privilege and self-incrimination provisions.

The Notice Decoder can help classify an instrument. Use it for initial triage, then verify the response route against the notice and the Act. Our overview of EPA notices in NSW sets out common first steps.

If a notice has been served, obtain prompt advice and provide the complete notice, its attachments, service details and earliest deadline. Our environmental regulation work covers clean-up, prevention and other notices. Where enforcement has moved to a penalty notice or prosecution, see environmental prosecutions and penalty notices.