Advice on Stop Work Orders and Remediation Orders
Statutory orders and your obligations
The Environment Agency Head of the NSW Department of Climate Change, Energy, the Environment and Water (DCCEEW), alongside regulatory bodies such as the Natural Resources Access Regulator (NRAR) and the NSW Environment Protection Authority (EPA), holds the authority to issue statutory orders. These include Remediation Orders (or Remedial Directions) and Stop Work Orders (SWO), which are served when there is sufficient evidence that an environmental offence has occurred or is ongoing.
representations to achieve the best possible regulatory standing for our clients.
NSW Land Management Advisory Services (NSW LMAS) provides technical consulting, land management, environmental, and regulatory advisory services. Our advice is not legal advice and should not be relied upon as a substitute for advice from a qualified Australian legal practitioner. Where appropriate and at your instruction, NSW LMAS can work alongside legal practitioners to provide technical advice as well as ecologists, bush regeneration specialists, and other suitably qualified experts to assist in addressing specific project or regulatory requirements.
Disclosure
Stop Work Orders
Remediation Orders and Remedial Directions
Negotiating and appealing Stop Work or Remediation Orders
A SWO is designed to immediately halt ongoing clearing or environmental harm where the regulator believes the activity is unlawful. To issue an SWO, there must be a valid basis to suspect that current or potential future harm will occur. These orders typically last for 40 days but may be extended if the regulator maintains a suspicion of ongoing risk. Once served, an SWO can be appealed through the Land and Environment Court. It is important to note that under the Biodiversity Conservation Act 2016, there is no provision for an SWO to be revoked or varied before the initial 40-day period expires.
Remediation Orders are regulatory tools used to abate, remedy, or restore environmental damage resulting from unlawful activity. Unlike criminal prosecutions that require proof 'beyond reasonable doubt', a Remediation Order under the NSW Biodiversity Conservation Act 2016 can be issued based on the 'balance of probabilities'.
The Department may issue these orders independently or alongside other measures, such as warning letters or fines. Because they focus on ecological restoration, Remediation Orders can remain active for significant periods, sometimes spanning 3 to 50 years. It is standard practice to receive a draft order before it becomes enforceable; during this time, stakeholders should seek professional advice to provide formal feedback on the proposal. NSW LMAS provides expert guidance in negotiating Remediation Orders to ensure outcomes are balanced, reasonable, and proportionate.
If a Stop Work or Remediation Order is served as enforceable, it may be appealed at the Land and Environment Court within 30 days of issuance. Please be aware that you must comply with the order during the appeal period, unless the Court directs otherwise. We can guide you through the appeal process.
In cases where the appeal period has passed, we can still make representations to regulatory bodies to suggest constructive amendments, as they retain the power to vary or revoke orders. Our team specialises in negotiating draft orders, assisting with formal appeals, and managing representations to achieve the best possible regulatory standing for our clients.