Action on Default Procedure
Public Health Explanatory Paper
March 2014
ACKNOWLEDGMENTS
This procedure has been prepared by the Local Government Association of SA (LGA) with
the assistance of Environmental Health Australia (SA) Inc and Healthy Environs Pty Ltd for
the guidance of and use by member Councils. The LGA is the statutory peak body for Local
Government in South Australia, representing all 68 Councils in the State.
The Information Paper was first published by Environmental Health Australia (SA) Inc in
2007 with the assistance of the Local Government Research Scheme.
This project has been assisted by the Department for Health and Ageing (SA Health).
Enquiries regarding this publication should be directed to the LGA on 8224 2000.
Action on Default Procedures
1.
Purpose & Scope
This procedure describes the carrying out of works in default of: Statutory Notices or a
verbal Notice in the event of an Emergency.
The procedure details considerations for taking ‘action on default’ and the process to
undertake the works and recover costs.
1.1 Responsibility
This procedure is written for use by authorised officers (Environmental Health Officers).
Officers are required to act reasonably and transparently, demonstrate good customer
service, undertake their responsibilities in a proficient manner and use their judgement
where necessary to ensure an outcome in line with legal requirements and Council’s
Enforcement Policy.
1.2 Legislation
This procedure provides guidance on taking ‘Action on Default’ under the following
legislation:

South Australian Public Health Act 2011;

Environment Protection Act 1993; and

Local Government Act 1999.
1.3 Definitions
Emergency – (in the South Australian Public Health Act 2011 only) has the same
meaning as the Emergency Management Act 2004. In other Acts, the term takes its
meaning from the context of the situations to be dealt with under that Act;
Public Health – means the health of individuals in the context of the wider community
(under the South Australian Public Health Act 2011 only).
2.
Relevant Documentation



3.
Intention Letter;
Warrant Procedure; and
South Australian Public Health Act 2011. Draft Guidelines: General duty, Notices
and Emergency Situations, Offences.
Record Management
All documentation related to taking ‘action on default’ must be stored in accordance
with your Council’s Records Management protocols as required by Section 125 of the
Local Government Act 1999 and the State Records Act 1997.
4.
Procedure
Action on default may be undertaken under the following legislation:
DME 100670
-3-
South Australian Public Health Act 2011
Section 93 of the SA Public Health Act 2011 provides for a Relevant Authority (e.g.
Council) to take action on non-compliance with a Notice issued under the Act (Section
92). Under this Section, the reasonable costs and expenses incurred by a Relevant
Authority may be recovered. The Council may (by notice in writing) fix a period for
payment of the relevant amount.
Section 94 of the South Australian Public Health Act 2011 provides for an authorised
officer to take action in emergency situations, where the officer believes on reasonable
grounds that a situation is posing a risk to public health and that immediate action is
required.
Local Government Act 1999
Section 257 of the Local Government Act 1999 provides that where the requirements of
an order issued under Section 254/255 of the Local Government Act 1999 are not
complied with in the time fixed for compliance (or, if there is an application for review,
within 14 days after the determination of the review), the Council may (subject to the
outcome of any review) take the action required by the order.
The Council may recover the reasonable costs and expenses incurred by it in taking
action under Section 257, as a debt, from the person who failed to comply with the
requirements of the order.
Environment Protection Act 1993
Sections 95 and 102 of the Environment Protection Act 1993 (respectively) provides
that if the requirements of an environment protection or clean-up order are not
complied with, the Authority (or other administering agency) may take any action
required by the order.
The Authority (or other administering agency) may recover the reasonable costs and
expenses incurred by it in taking action, as a debt, from the person who failed to
comply with the requirements of the order.
4.1 Decision to undertake Action on Default
Action on default may be undertaken in the following events:
1)
General non-compliance with a notice
An inspection may confirm that works to comply with a Notice/Order have not been
satisfactorily completed, see EHO Site Visits and Inspections Procedure.
Appropriate evidence must be collected to show that the Notice/Order has not been
complied with, see Evidence Collection Procedure.
Ensure that appropriate natural justice, has been given throughout the course of the
investigation prior to considering undertaking action on default, see Council’s
Enforcement Policy.
2)
In an emergency situation
South Australian Public Health Act 2011
Verbal or written notice may be given (if reasonable under the circumstances) to detail
required action. Note: the authorised officer may take action whether or not a notice
has been given to the relevant person.
Evidence must be collected to show that the situation is creating or likely to create a
risk to public health and that there are reasonable grounds to take immediate action to
avert, control or eliminate the risk.
Local Government Act 1999
If there is a threat to life or an immediate threat to public health or public safety, or an
emergency situation exists, the Council may make an Order that requires immediate
compliance. Failure to undertake immediate compliance actions would activate the
Council’s power to Act under Section 257 of the Local Government Act 1999.
Again, evidence should be gathered to show that immediate action was necessary in
the circumstances.
Environment Protection Act 1993
If urgent environment protection or clean-up action is required, the Authority (or another
administering agency) may make an Order that requires immediate compliance.
Failure to undertake immediate compliance actions would activate the
Authority/administering agency’s power to Act under Section 95/102 of the Environment
Protection Act 1993.
Evidence to substantiate why immediate compliance action was required should be
obtained.
4.2 Undertaking Works in Default
4.2.1 Intention advice
Where action is to be undertaken to address non-compliance with a Statutory Notice,
the officer must write a letter to the defaulting owner/occupier/responsible person
advising them of their intention to enter their premises and carry out the works specified
in the Notice/Order in default.
Officers should make it very clear to the owner/occupier that all charges involved in the
action on default will be charged to them. Note: in most cases, at least 7 days notice
should be given in the letter.
Verbal advice of the intent to take action is sufficient when urgent or emergency action
is required under the South Australian Public Health Act 2011, Environment Protection
Act 1993 and Local Government Act 1999.
4.2.2 Expense allocation and records
Retain records of relevant expenses and allocate to an account number in accordance
with Council’s accounts procedures.
Records of expenses incurred may include:

staff time - record all time spent on the works in default process. Note: exclude
time spent on Final Inspection, which has to be carried out in any event to ‘sign
off a Notice’;

contractor expenses – retain all contractor invoices and record all contractor
expenses;

equipment costs – record details of necessary equipment (such as machinery or
personal protective or sampling equipment); and

sampling and testing costs – record costs of sampling, environmental or
laboratory testing.
4.2.3 Procuring and managing works services
In certain cases, contractors will need to be engaged to undertake the required actions.
Contractors need to be engaged in accordance with your Council’s procurement
procedures and will generally involve:
a) Preparing a works specification
Produce a schedule or full specification of works for the notice, for pricing by
contractors. This may involve a further site visit and inspection. Access difficulties
should be reported to the contractor supervisor and the Warrant Procedure followed
where necessary.
Note: the specification must be clear, specific and unambiguous and may need to
include measurements, approximate quantities and details of materials and
workmanship.
Works must be in line with the requirements of the Notice/Order. Works beyond the
scope of the Notice/Order will require the service of (and time for compliance with) a
further Notice/Order, or will otherwise be beyond the Council’s power.
Where necessary, include the requirement for necessary licences or certifications, e.g.
Environment Protection Licence, NATA certified laboratory in any schedule or
specification prepared.
b) Purchasing, Contracts, Tendering
The schedule or specification is used to purchase, contract or tender for the work to be
undertaken.
Note: when arranging purchasing, contracts and tenders reference must be made to
Councils Contracts and Tendering Policy.
c) Acceptance of Contract
Consider the tenders received; obtain approval and sign off from Councils delegate in
accordance with the Delegations and sub-delegations manual.
d) Contract Administration/Site Inspection
Administer and supervise contract on behalf of Council.
Ensure regular reviews are conducted and maintain a record of progress, advising the
contractor of any problems relating to the works. If works are carried out under the
authority of a Warrant, the holder of the Warrant must be on site at all times when
works are carried out.
Ensure that works are undertaken in accordance with legislative requirements and
request copies of permits/documentation where necessary, e.g. waste tracking forms
required by the Environment Protection Act 1993. It is best practice for an officer of the
Council to be on-site during all works to ensure strict compliance with the requirements
of the Notice/Order.
If contractors are to undertake action on default under the Environment Protection Act
1993, they must be issued with an instrument of authority under that Act, authorising
them to undertake the works.
e) Contract Variations
Variations to the contract must be dealt with in accordance with Councils Contracts and
Tendering Policy and Procedures and be agreed with the Team Leader or Manager
prior to issue of instructions.
Note: issue written instructions for any variations.
Obtain the contractor’s price for each item.
Adjust any items contained in the original schedule of works, as appropriate.
Discuss and agree quantities and rates for adjustments.
f) Completion of Works
All items requiring further attention should be attended to before accepting completion.
Where relevant, obtain proof that works have been performed to a standard/
requirement. Photograph or video completed works. Take notes of a site inspection
conducted.
4.2.4 Payment request
Prepare a letter to the owner/occupier/responsible person summarising the reasonable
costs incurred and specifying a period for payment. Raise an invoice for expenses in
accordance with Council’s accounts procedures.
Note: at least 28 days for payment must be given.
4.2.5 Land charge (if payment not received)
Advise Councils Rates Section of the works and any resultant charges to be applied
against the land, via an internal memo or email.
Note: under the South Australian Public Health Act 2011 and the Local Government Act
1999 and Environment Protection Act 1993, if the responsible person does not pay
within the specified period, the person is liable to pay interest at the prescribed rate per
annum.
4.2.6 Monitoring and review of Procedure
This procedure shall be reviewed annually.