Investigations – General Overview Presentation of Government Regulatory Officers

1. By Darren Riding aka Watchdog.
Highly Published Investigation:
Dib Hanna (Environment Protection Authority v Hanna [2010] NSWLEC 98
Expert Witness – Asbestos:
• Supreme Court NSW - Galea v Farrugia and Cauchi [2012] NSWSC 77
• Court of Appeal NSW – Galea v Farrugia [2013] NSWCA164

2. Qui Dederit Cacas

3. What is required
before attending ???

4. What is required
before attending if all
possible
Information about the Site
• Do they have a Development Consent?
• Is it an Exempt Development?
• Was a Complying Development Certificate (CDC)
issued?
• Has a Construction Certificate been issued?
• Who is the Principal Certifying Authority (Council
or Private Certifier)?
• Has there been any approved changes
to the Development Consent (Section
96)?
• Any History on or about the site?
• What complaints have been brought
about this site

5. Consent – Certificates – Section 96

6. ENVIRONMENTAL PLANNING AND
ASSESSMENT ACT 1979 - SECT 76A
• Development that needs consent
• 76A Development that needs consent
• (1) General If an environmental planning instrument provides that specified development may
not be carried out except with development consent, a person must not carry the development
out on land to which the provision applies unless:
• (a) such a consent has been obtained and is in force, and
• (b) the development is carried out in accordance with the consent and the instrument.
• (2) For the purposes of subsection (1), development consent may be obtained:
• (a) by the making of a determination by a consent authority to grant development consent, or
• (b) in the case of complying development, by the issue of a complying development certificate.

7. Complying Development Certificates
The NSW Government has introduced a number of State-wide Planning Policies that facilitate certain types of development without requiring
consent from a Council.
This was an incentive to make the development approval process consistent throughout the state less confusing, cheaper and faster to obtain
development approval.
Depending on what is proposed, a CDC may be issued for the following types of development:
• Internal alterations to a dwelling including residential units
• New dwellings
• Granny Flats (attached or detached)
• Internal alteration to a building that is used as a commercial premises, for light industry or warehouse purposes
• Changes of use for commercial premises to other prescribed uses i.e.: office to shop, shop to office.
The NSW Environmental Planning and Assessment Act 1979 allows for an environmental planning instrument to identify development that can be
addressed by specified predetermined development standards as complying development.
Complying development has been in place in NSW since 1998. This planning and construction approval path was developed to ensure low risk and
low impact development types do not have to be assessed via the merit path of a development application. For these low impact and low risk
developments, the complying development path has obvious time and cost savings for homeowners, industry as well as local government.

8. State Environmental Planning Policy (Exempt and Complying
Development Codes) 2008
1.17A Requirements for complying development for all environmental planning instruments
(1) To be complying development for the purposes of any environmental planning instrument, the development must not:
(a) be development for which development consent cannot be granted except with the concurrence of a person other than:
(i) the consent authority, or
(ii) the Director-General of the Department of Environment, Climate Change and Water as referred to in section 79B (3) of the
Act, or
(b) be on land that is critical habitat, or
(c) be on land that is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987), or
(d) be carried out on land that:
(i) comprises an item that is listed on the State Heritage Register under the Heritage Act 1977 or on which such an item is
located, or
(ii) is subject to an interim heritage order under that Act or on which is located an item that is so subject, or
(iii) is identified as an item of environmental heritage or a heritage item by an environmental planning instrument or on which
is located an item that is so identified, or
(e) except as otherwise provided by this Policy, be on land that is within an environmentally sensitive area.

9. 1.18 General requirements for complying development for this Policy
(1) To be complying development for the purposes of this Policy, the development must:
(a) not be exempt development under this Policy, and
(b) be permissible, with consent, under an environmental planning instrument applying to the land on which the development is
carried out, and
(c) meet the relevant provisions of the Building Code of Australia, and
(c1) must not require an environment protection licence within the meaning of the Protection of the Environment Operations Act
1997, and
(c2) must not be designated development, and
Note. Designated development is defined in section 77A of the Act as development that is declared to be designated
development by an environmental planning instrument or the regulations.
(c3) not be carried out on land that comprises, or on which there is, a draft heritage item, and
(d) before the complying development certificate is issued, have an approval, if required by the Local Government Act 1993, for:
(i) an on-site effluent disposal system if the development is undertaken on unsewered land, and
(ii) an on-site stormwater drainage system, and

10. • (e) before the complying development certificate is issued, have written consent from the relevant roads authority (if required under
section 138 of the Roads Act 1993) for the building of any kerb, crossover or driveway, and
• Note. Other consents may be required under section 138 of the Roads Act 1993 before carrying out other works in relation to roads.
• (f) if it is the alteration or erection of improvements on land in a mine subsidence district within the meaning of the Mine Subsidence
Compensation Act 1961, have the prior approval of the Mine Subsidence Board, and
• Note. Information about mine subsidence is information that is a prescribed matter for the purpose of a planning certificate under
section 149 (2) of the Act, but the information is not included in a certificate issued under clause 279 (2) of Environmental Planning and
Assessment Regulation 2000.
• (g) not be the construction or installation of a skylight or roof window on land to which Orana Regional Environmental Plan No 1—
Siding Spring applies, and
• (h) if it involves the removal or pruning of a tree or other vegetation that requires a permit or development consent to which clause 3.6A,
3A.7 or 5A.3 does not apply—before the complying development certificate is issued, have a permit or development consent for that
removal or pruning.
• Note. A permit for the removal or pruning of a tree or other vegetation may be granted under a local environmental plan. A development
consent for the removal of native vegetation may be granted under the Native Vegetation Act 2003. Paragraph (h) may not apply to
certain trees or vegetation near complying development under this Policy (see clauses 3.6A, 3A.7 and 5A.3).
• (2) The erection of a new dwelling house or an addition to a dwelling house on land in the 20-25 ANEF contours is complying
development for this Policy, if the development is constructed in accordance with AS 2021—2000, Acoustics—Aircraft noise intrusion—
Building siting and construction.
• (3) A complying development certificate for complying development under this Policy is subject to the conditions specified in this Policy
in respect of that development.

11. State Environmental Planning Policy (Exempt and Complying
Development Codes) 2008
1.15 What development is exempt development?
(1) Development that is specified in an exempt development code that meets the standards specified for that
development and that complies with the requirements of this Division for exempt development is exempt
development for the purposes of this Policy.
(2) For the purposes of subclause (1), development that is specified includes any specified limitations as to the land
on which that development may be carried out.
Note. Under section 76 of the Act, exempt development may be carried out without the need for development
consent under Part 4 of the Act or for assessment under Part 5 of the Act.
The section states that exempt development:
(a) must be of minimal environmental impact, and
(b) cannot be carried out in critical habitat of an endangered species, population or ecological community
(identified under the Threatened Species Conservation Act 1995 or the Fisheries Management Act 1994), and
(c) cannot be carried out in a wilderness area (identified under the Wilderness Act 1987).

12. 1.16 General requirements for exempt development
(1) To be exempt development for the purposes of this Policy, the development:
(a) must meet the relevant deemed-to-satisfy provisions of the Building Code of Australia, or if there are no such relevant
provisions, must be structurally adequate, and
(b) must not, if it relates to an existing building, cause the building to contravene the Building Code of Australia, and
(c) must not be carried out on land that is, or on which there is, an item that is listed on the State Heritage Register under the
Heritage Act 1977, or that is subject to an interim heritage order under that Act.
(d) (Repealed)
(1A) Despite subclause (1) (c), if development meets the requirements and standards specified by this Policy and that
development:
(a) has been granted an exemption under section 57 (2) of the Heritage Act 1977, or
(b) is subject to an exemption under section 57 (1A) or (3) of that Act,
the development is exempt development under this Policy.
(1B) If an item listed on the State Heritage Register is not located on, or does not comprise, the whole of the relevant land,
subclause (1) (c) applies only to the part of the land that is described and mapped on that register.
(1C) If an item not listed on the State Heritage Register but identified as an item of environmental heritage in an environmental
planning instrument does not comprise, or is not located on, the whole of the relevant land, any restriction on carrying out
development on the relevant land on which the item is located applies only to the part of the land that is described and mapped
on that instrument.

13. (2) Development that relates to an existing building that is classified under the Building Code of Australia as class 1b
or class 2–9 is exempt development for the purposes of this Policy only if:
(a) the building has a current fire safety certificate or fire safety statement, or
(b) no fire safety measures are currently implemented, required or proposed for the building.
(3) To be exempt development for the purposes of this Policy, the development must:
(a) be installed in accordance with the manufacturer’s specifications, if applicable, and
(b) not involve the removal or pruning of a tree or other vegetation that requires a permit or development consent
for removal or pruning, unless that removal or pruning is undertaken in accordance with a permit

14. Construction Certificate
• After a development application is approved, a Construction Certificate is needed before building actually begins.
A Construction Certificate is an approval that:
• Makes sure that the detailed construction plans and specifications comply with the Building Code of Australia
(BCA) now known as National Construction Code (NCC) and any other relevant Australian standard.
• Certifies that the detailed construction plans and specifications are consistent with the Development Consent.
• Certifies that the relevant development consent conditions have been complied with.
• Certifies that all necessary contributions and fees have been paid.
• A Construction Certificate can be issued by Council or a private Accredited Certifier.
• If issued by a private Accredited Certifier, a copy of the certificate, associated plans and specifications must be
forwarded to Council within two days after the date of determination.

15. Section 96
Modification of a Development Consent
• After a development consent has been issued, the original applicant or anyone entitled to act on the applicants
behalf can apply to the Approving Authority for approval to modify that development consent.
• An application to modify a development consent is made under Section 96 of the Environmental Planning and
Assessment Act 1979 (the Act). Section 96 refers to the part of the Act that allows a development consent to be
modified, as long as the development is substantially the same.
• If Approving Authority does not agree that the proposed modifications would result in substantially the same
development as was originally approved, a new development application will need to be submitted for
assessment.

16. Just Been Given a Task/Job/investigation

17. Information obtained – you’re on you way
Have you got every thing ????

18. What is required to take when attending
• Documentation – Consents etc…..
• Notebook and Pen
• Camera
• Digital Recorder (Optional)
• Authority Cards - ID
• Delegations
• General Induction Card (White Card)
• Asbestos Awareness/Removal Card
• Personal Protection Equipment
• Evidence Bags
• Evidence/Document Labels
• Warning Tape
• Pamphlets – Information – Educational
Material

19. Personal Protection Equipment

20. Pamphlets – Information – Educational Material

21. OPTIONS DEALING WITH THESE MATTERS
LEGAL OPTIONS
• Warnings
• Fines
• Court Matters
REMEDIATION OPTIONS
• Clean Up Notices
• Prevention Notices
• Orders

22. AUDITS
Waste or Compliance Audits
. Quarries
. Waste Facilities

23. Warning and Limiting Area
WORK HEALTH AND SAFETY REGULATION 2011 - REG 468
Person with management or control of workplace must inform persons about asbestos removal work
468 Person with management or control of workplace must inform persons about asbestos removal work
(1) This clause applies if the person with management or control of a workplace is informed that asbestos removal work is to be
carried out at the workplace.
(2) The person must ensure that the following persons are informed that asbestos removal work is to be carried out at the
workplace and when the work is to commence, before the work commences:
(a) the person’s workers and any other persons at the workplace,
(b) the person who commissioned the asbestos removal work.
Maximum penalty:
(a) in the case of an individual-$6,000, or
(b) in the case of a body corporate-$30,000.
(3) The person must take all reasonable steps to ensure that the following persons are informed that asbestos removal work is to
be carried out at the workplace and when the work is to commence, before the work commences:
(a) anyone conducting a business or undertaking at, or in the immediate vicinity of, the workplace,
(b) anyone occupying premises in the immediate vicinity of the workplace.
Maximum penalty:
(a) in the case of an individual-$6,000, or
(b) in the case of a body corporate-$30,000.
WORK HEALTH AND SAFETY REGULATION 2011 - REG 469
Signage and barricades for asbestos removal work
469 Signage and barricades for asbestos removal work
An asbestos removalist must ensure that:
(a) signs alerting persons to the presence of asbestos are placed to indicate where the asbestos removal work is being carried out,
and
(b) barricades are erected to delineate the asbestos removal area.
Maximum penalty:
(a) in the case of an individual-$6,000, or
(b) in the case of a body corporate-$30,000.

24. Contractors/Customers try to cover up Activities
Bury or mix in Landfill
Break Asbestos and hide
in Garbage Bins
Burn Waste

25. Example of Contractor
Location Road, Wallacia
******************************
POI: N K @ N T
D.O.B: 20/09/1969
ADD 1: , Bass Hill
ADD 2: , Constitution Hill
CHARGES: PCA, Steal Motor Vehicle, Cargo theft, Assault, Traffic
INTELL: People smuggling, Firearms, Cargo theft x 7, B,E&S x 8,
*******************************
Occupants: L Family
Firearm Holder: B P L
D.O.B: 01/01/1956
Firearms: 1 x Single barrel shotgun and 1 x .22 Rifle.
Safe audit conducted and passed on 13th March 2013.
*******************************
Police have recently received information about the mentioned POI dumping asbestos at the above location. The information
obtained shows the POI is charging $1,000 per load of asbestos taken and dumped at the above location.
In September 2013, the POI was involved in an GBH assault on two persons at the above mentioned location.
This information has been passed onto Mr Darren RIDING who are aware of the POI and the location

26. Appropriate ARA
If Investigating a matter, ensure the Appropriate Authority
is investigating the matter

27. Two Telephone Numbers to Remember
• 131555
• 131050

28. Evidence

29. Continuity of Evidence
1. The unbroken and consistent existence or operation of
something over time.
2 . The maintenance of continuous action and self-
consistent detail .

30. Procedural Fairness
The Land and Environment Court has confirmed that ARAs have a duty to afford procedural fairness when
issuing clean-up notices (Liverpool City Council v L Cauchi & Ors [2005] NSWLEC 675).
ARAs should seek legal advice on the extent of their procedural fairness obligations when issuing clean-up
notices.
The extent of the obligations imposed by that duty will vary depending on the particular circumstances of the
case. The duty to afford procedural fairness may require an ARA to consult with the proposed recipient of a
notice for example, by providing them with a copy of the draft notice to give that recipient the right to be
heard before the decision to issue the notice is made. Note that the need for urgent action is likely to
minimise rather than entirely exclude the need for procedural fairness. If the notice is directed to a person
other than the polluter, consider whether consultation should take place with the polluter before the decision
to issue the notice is made.

31. Hygienist Report
• Independent NATA
Certified/Qualified Person of
Company
• Sampling Undertaken
• Not by Company Undertaking Work
to remove waste
• Not just visual site Inspection when
necessary

32. Other Legal Requirements
Asbestos removal control plan
WORK HEALTH AND
SAFETY REGULATION
2011 - REG 464
Asbestos removal control
plan
464 Asbestos removal
control plan
(1) A licensed asbestos
removalist must prepare
an asbestos removal
control plan for any
licensed asbestos removal
work the removalist is
commissioned to
undertake.
Maximum penalty:
(a) in the case of an
individual-$6,000, or
(b) in the case of a body
corporate-$30,000.
(2) An asbestos removal
control plan must include:
(a) details of how the
asbestos removal will be
carried out, including the
method to be used and
the tools, equipment and
personal protective
equipment to be used,
and
(b) details of the asbestos
to be removed, including
the location, type and
condition of the asbestos.
(3) The licensed asbestos
removalist must give a
copy of the asbestos
removal control plan to
the person who
commissioned the
licensed asbestos removal
work.
Maximum penalty:
(a) in the case of an
individual-$3,600, or
(b) in the case of a body
corporate-$18,000.
Clearance inspection
WORK HEALTH AND
SAFETY REGULATION
2011 - REG 473
Clearance inspection
473 Clearance
inspection
(1) This clause applies
if a person
commissions licensed
asbestos removal
work at a workplace.
(2) The person or, if
the workplace is
residential premises,
the licensed asbestos
removalist must
ensure that, when the
licensed asbestos
removal work is
completed, a
clearance inspection
of the asbestos
removal area at the
workplace is carried
out by:
(a) if the asbestos
removal work must be
carried out by the
holder of a Class A
asbestos removal
licence-an
independent licensed
asbestos assessor, or
(b) in any other case-
an independent
competent person.
Maximum penalty:
(a) in the case of an
individual-$6,000, or
(b) in the case of a
body corporate-
$30,000.
(3) In this clause, a
clearance inspection is
an inspection of an
asbestos removal area
after asbestos
removal work has
been completed to
verify that the area is
safe for normal use,
that:
(a) includes a visual
inspection, and
(b) may include air
monitoring.
Clearance certificates
WORK HEALTH AND
SAFETY REGULATION 2011 -
REG 474
Clearance certificates
474 Clearance certificates
(1) This clause applies if a
clearance inspection has
been made in accordance
with clause 473.
(2) The licensed asbestos
assessor or competent
person who carried out the
clearance inspection must
issue a clearance certificate,
in accordance with this
clause, before the asbestos
removal area at the
workplace is re-occupied.
Maximum penalty:
(a) in the case of an
individual-$6,000, or
(b) in the case of a body
corporate-$30,000.
(3) The licensed asbestos
assessor or competent
person must ensure that the
asbestos removal area does
not pose a risk to health
and safety from exposure to
asbestos.
Maximum penalty:
(a) in the case of an
individual-$6,000, or
(b) in the case of a body
corporate-$30,000.
(4) The licensed asbestos
assessor or competent
person must not issue a
clearance certificate unless
satisfied that:
(a) the asbestos removal
area, and the area
immediately surrounding it,
are free from visible
asbestos contamination,
and
(b) if the assessor or
competent person
undertook air monitoring as
part of the clearance
inspection-the monitoring
shows asbestos below 0.01
fibres/ml.
Maximum penalty:
(a) in the case of an
individual-$6,000, or
(b) in the case of a body
corporate-$30,000.
(5) The clearance certificate
must be in writing and must
state that:
(a) the assessor or
competent person found no
visible asbestos residue
from asbestos removal work
in the area, or in the vicinity
of the area, where the work
was carried out, and
(b) if air monitoring was
carried out by the assessor
or competent person as
part of the clearance
inspection-the airborne
asbestos fibre level was less
than 0.01 asbestos
fibres/mL.

33. Other Considerations
Statute of Limitations
PROTECTION OF THE ENVIRONMENT OPERATIONS ACT 1997 - SECT 216
Time within which summary proceedings may be commenced
216 Time within which summary proceedings may be commenced
(1) Proceedings for an offence under this Act or the regulations may be commenced:
(a) in the case of a prescribed offence-within but not later than 3 years after the date on which the offence is alleged to have been committed, or
(b) in any other case-within but not later than 12 months after that date.
(2) Proceedings for an offence under this Act or the regulations may also be commenced:
(a) in the case of a prescribed offence-within but not later than 3 years after the date on which evidence of the alleged offence first came to the attention of any
relevant authorised officer, or
(b) in any other case-within but not later than 12 months after that date.
(3) If subsection (2) is relied on for the purpose of commencing proceedings for an offence, the court attendance notice or application must contain particulars of the
date on which evidence of the offence first came to the attention of any relevant authorised officer and need not contain particulars of the date on which the offence
was committed. The date on which evidence first came to the attention of any relevant authorised officer is the date specified in the court attendance notice or
application, unless the contrary is established.
(4) This section applies only to proceedings that are to be dealt with summarily.
(5) This section applies despite anything in the Criminal Procedure Act 1986 or any other Act.
(6) In this section:
"authorised officer" means any person who is an authorised officer for the purposes of this Act, whether or not the person has the functions of an authorised officer in
connection with the offence concerned.
"evidence" of an offence means evidence of any act or omission constituting the offence.
"prescribed offence" means:
(a) an offence arising under Part 5.2, or
(b) an offence arising under Part 3.2, or
(c) an offence arising under section 143 (Unlawful transporting of waste) or 144 (Use of place as waste facility without lawful authority), or
(c1) an offence under section 142A (Pollution of land) or 144AA (False or misleading information about waste)

34. Recovery Costs
PROTECTION OF THE ENVIRONMENT OPERATIONS ACT 1997 - SECT 104
Compliance cost notices
104 Compliance cost notices
(1) Clean-up notice-monitoring or compliance costs The appropriate regulatory authority that gives a clean-up notice under section 91 to a person may, by notice in
writing, require the person to pay all or any reasonable costs and expenses incurred by the authority in connection with:
(a) monitoring action under the notice, and
(b) ensuring that the notice is complied with, and
(c) any other associated matters.
(2) Clean-up by public authority A public authority that takes clean-up action under section 92 may, by notice in writing, require:
(a) the occupier of the premises at or from which the authority reasonably suspects that the pollution incident occurred, or
(b) the person who is reasonably suspected by the authority of having caused the pollution incident,
or both, to pay all or any reasonable costs and expenses incurred by it in connection with the clean-up action.
(3) Prevention notice-monitoring or compliance costs The appropriate regulatory authority that gives a prevention notice to a person may, by notice in writing, require the
person to pay all or any reasonable costs and expenses incurred by the authority in connection with:
(a) monitoring action under the notice, and
(b) ensuring that the notice is complied with, and
(c) any other associated matters.
(4) Prevention notice or prohibition notice-non-compliance A regulatory authority that takes action under section 98 because a prevention notice is not complied with or
takes action under section 103 because a prohibition notice is not complied with may, by notice in writing, require the person to whom the notice was given to pay all or
any reasonable costs and expenses incurred by it in taking the action.
PROTECTION OF THE ENVIRONMENT OPERATIONS ACT 1997 - SECT 105
Recovery of amounts
105 Recovery of amounts
(1) Recovery of unpaid amounts A regulatory authority or public authority may recover any unpaid amounts specified in a compliance cost notice as a debt in a court of
competent jurisdiction.
(2) Recovery by person given notice If the person given a compliance cost notice complies with the notice but was not the person who caused the pollution or pollution
incident, the cost of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from the
person who caused the pollution or pollution incident.

35. Joint Inspections
1. Joint Inspection with EPA.
2. Joint Inspection with SafeWork.
Orders and Notices
1. No Order or Notice is Standard.
2. No Short Cuts or Cut and Pastes.
3. Ensure Orders and Notices are not
Blank Cheques.
4. Ensure Orders and Notices are easy to
understand.
5. If Orders and Notices are Technical –
Break them down into stages –
Numerous Orders and Notices may be
required.
Don’t Wear Horse Blinkers
If attending for one matter and observe
other matters – deal with them as well.
Understand Hierarchy
1. Acts.
2. Regulations.
3. SEPPs.
4. REPs
5. LEPs
6. DCPs

36. Record Keeping /Notes/ Briefs of Evidence
1. Be Thorough.
2. Obtain Numerous Photographs – Evidence etc.
3. Use Extracts of Legislation.
4. Know your Legislation.
5. Forget the saying Less is More – Its better to have a 90 page brief than a 2 page brief.
6. Link Records-Notes-Photographs etc. to All Relevant Files.
7. Save your information on the work computer on a regular basis – IT do regular back ups such
that files can not be lost.
8. Proof Read and Revise Information where necessary.

37. Questions…………