A local council exercising compulsory environmental protection powers under the PEO Act s 91 does not owe a duty of care to the person against whom the power is directed to avoid causing economic loss, because the recipient is not 'vulnerable' (having access to judicial review and the reasonable excuse defence), the duty would be incompatible with the statutory scheme, and it would lack coherence with administrative law. However, the obligation to afford procedural fairness is an incident of the exercise of power under s 91, and a clean-up notice must bear a reasonable proportional relationship to the pollution incidents suspected. The scope and operation of s 43A of the Civil Liability Act 2002 (NSW), including whether it extends to purported exercises of power vitiated by jurisdictional error, remains unresolved.
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