Figure 2: Summary of investigation and enforcement
Clause 32: Information notices
286 This clause provides that the OEP can take enforcement action in the form of "information notices" in cases where it reasonably suspects a public authority may be responsible for a serious breach of environmental law. This action may follow the investigation of a complaint, but the OEP can also take enforcement action if it has other grounds for suspecting there has been a serious breach (for example, based on information presented in a report on the implementation of a law, or arising from a parliamentary inquiry or other source), whether arising from an investigation under clause 30 or not.
287 This clause, and those that follow it, reflects the intended enforcement function and process of the OEP. Figure 2 illustrates the process that is expected to operate in the OEP’s management of enforcement activities under these clauses.
288 Under subsection (1), the OEP may issue an information notice if it has reasonable grounds (whether or not this information arises from an investigation under clause 30) for suspecting that a public authority has failed to comply with environmental law, and it considers that the failure is serious. The seriousness of a failure will be determined by the OEP in accordance with its own, published enforcement policy (see clause 22). The OEP therefore may not serve an information notice in relation to trivial matters, or serve a speculative information notice if it does not have any reasonable basis to believe an authority is failing to comply with environmental law.
289 Information notices are a means by which the OEP can formally request information from the public authority concerned in relation to a suspected failure. Subsection (2) states that an information notice is to describe the alleged failure, and the information that the OEP requests in relation to it. Subsection (3) requires the relevant public authority to respond in writing to an information notice within a fixed time period as specified in subsection (4), and subsection (5) sets out what information should be included in such responses.
290 Subsection (4) specifies that responses must be provided within two months from the date on which the notice was issued, or such later date as specified by the OEP. This means that, although the OEP can specify a response date that gives a public authority longer than the standard period of two months to respond if it sees fit (for example, if it accepts that the matter is exceptionally complex, or if the ability of the public authority to respond is constrained by an election period), it must allow notice recipients at least this amount of time.
291 Under subsection (6), the OEP may withdraw an information notice or issue multiple information notices in relation to the same suspected infringement.
292 Under subsection (7), where the OEP plans to issue an information notice in relation to an alleged failure to comply with environmental law relating to greenhouse gas emissions, the OEP must first notify the Committee on Climate Change and provide it with appropriate information. "Emissions of greenhouse gases" is defined in the Climate Change Act 2008.
