Skip to content
Environment & pollution

I am facing environmental enforcement or prosecution

Environmental enforcement in New South Wales escalates quickly: an incident or complaint becomes an investigation, an investigation produces compulsory notices and interviews, and the outcome can be a penalty notice, an enforceable undertaking or prosecution. The decisions made in the first days, what is said, what is produced and how, often shape the entire matter.

Jurisdiction
New South Wales
Page type
Situation guide
Timing
Time-sensitive
On this page

This page may be relevant if:

  • You or your company are under investigation by the EPA, council or another regulator
  • You have received a compulsory information notice or an interview request
  • You have been issued a penalty notice and are deciding how to respond
  • You have been charged, or told that prosecution is being considered

What this usually means

  • Regulators hold broad investigation powers under the Protection of the Environment Operations Act 1997, including notices compelling information and records; responding to them is mandatory, and responses need care because they form part of the record.
  • Many environmental offences are strict liability, so intention is not required; the more serious tiers involve wilful or negligent conduct and substantially higher penalties.
  • A penalty notice can sometimes be the end of the matter, but paying one is not always the right course, and prosecution remains possible for more serious alleged conduct.
  • Prosecutions are generally heard in the Land and Environment Court, where sentencing weighs environmental harm, culpability, cooperation and the steps taken after the event; directors and managers can face personal liability for some corporate offences.

What commonly matters

  1. The first response

    Early admissions, informal explanations and incomplete productions all carry consequences. Getting advice before responding preserves options.

  2. Penalty notice or defence

    Paying, electing to contest, or engaging with the regulator about alternatives is a genuine decision, and it depends on the evidence and the exposure.

  3. Enforceable undertakings

    For some matters a negotiated undertaking can resolve enforcement without conviction, but it must be offered and structured carefully.

  4. Sentencing and mitigation

    Where prosecution proceeds, the work done on remediation, systems and cooperation before sentence materially affects the outcome.

How we help

  • Advise immediately on investigation responses, interviews and notices
  • Deal with the regulator on your behalf
  • Advise on penalty notices, representations and enforceable undertakings
  • Defend prosecutions and act on sentence in the Land and Environment Court

Related reading

This page is general information only and is not legal advice. It may not be current, and how the law applies depends on the specific facts. For advice on your situation, contact Stone & Pillar Legal.

Frequently asked questions

General information only, not legal advice. The position depends on your circumstances.

Do I have to answer an EPA notice requiring information or records?

Generally yes. Statutory notices under the Protection of the Environment Operations Act 1997 (NSW) are compulsory, and failing to comply is itself an offence. How you answer still matters: responses form part of the investigation record, and both over-disclosure and inaccurate answers create risk. Legal professional privilege can apply to some material, and there are rules about how compelled answers may be used. Taking advice before responding, rather than after, generally preserves the most options.

Should I just pay an environmental penalty notice?

Not automatically. Payment usually finalises the matter without conviction, which can be attractive, but it is not always the right course: the notice may rest on contestable facts, court election is available, and in some regulated industries the compliance record has consequences beyond the amount of the fine. Prosecution also remains a possibility for more serious alleged conduct regardless of the notice. Weighing the evidence, the exposure and the regulatory relationship before paying is generally worthwhile, and the election period is limited.

What is an enforceable undertaking and when is it available?

An enforceable undertaking is a written commitment given to the regulator under environment protection legislation, in EPA matters usually section 253A of the Protection of the Environment Operations Act 1997 (NSW), that may include remediation, systems work, monitoring and environmental projects. The EPA has a discretion whether to accept it, publishes guidelines on when it will, and can enforce a breach through the Land and Environment Court. Once the EPA has accepted an undertaking it is generally unlikely to prosecute the same conduct, but that depends on the undertaking being carried out and on no further offences being identified or committed, so an undertaking should not be assumed to end the matter. Every situation turns on its circumstances, the Act the undertaking is given under and the terms the regulator accepts. Any proposal should therefore state precisely what the regulator is and is not agreeing to do and be assessed alongside the evidence and possible proceedings.

Related situations

All situations

Where to start

An environmental investigation, penalty notice or prosecution?

A preliminary review can identify the decision, the material available, any stated date and the questions requiring legal or expert assessment.

Start the Matter Navigator

Book a preliminary call

No charge · Not legal advice

A preliminary call is a short conversation to check whether we can help, at no charge, and not legal advice. Please don't send confidential or time-sensitive material until we confirm in writing that we can act.

Book a preliminary call Call