Part 1: Environmental Governance Chapter 2: The Office for Environmental Protection Section 33: Investigations
This section deals with the investigation of complaints, and potential breaches of environmental law coming to the OEP’s attention by other means.
	Subsection (1) provides that the OEP may undertake an investigation on the basis of a complaint received under section 32 if it considers that the complaint indicates that a public authority may be responsible for a serious failure to comply with environmental law.
	Subsection (2) provides that the OEP may also undertake an investigation under this section without having received a complaint, if it has information obtained by other means that in its view indicates a public authority may have committed a serious failure to comply with environmental law.
	The OEP’s enforcement policy will set out how the OEP intends to determine seriousness for the purpose of subsection (2)(b). The OEP is not obliged to investigate all complaints, and provisions in subsections (1) and (2) allow the OEP to exercise discretion regarding the potential breaches that it investigates. The OEP’s approach to prioritising cases will also be set out in its enforcement policy, in which it must have regard to the considerations set out in section 23(7). If the OEP chooses not to investigate a complaint, the complainant must be informed under the requirements of section 34.
	Subsection (3) sets out the purpose of the investigation, which should focus on establishing whether a public authority has failed to comply with environmental law. Under subsection (4), at the start of an investigation the OEP is required to notify the public authority being investigated, although in practice it also has discretion to contact the public authority informally in advance of commencing an investigation. Subsection (10) also provides that, if the authority is not a Minister, the OEP must additionally notify the "relevant Minister". Subsection (11) provides that the relevant Minister should be the Minister of the Crown that the OEP considers appropriate, having regard to the nature of the public authority and the nature of the failure (that is, the Minister whose department is responsible for the policy area). For example, in the case of an investigation into a potential infringement relating to environmental permitting, a Minister from the Department for Environment, Food and Rural Affairs should likely be informed where the Environment Agency had issued the permit in question. If an investigation relates to environmental impact assessment, which is a policy area predominantly owned by the Ministry for Housing, Communities and Local Government, a Minister from this department should likely be informed, where a local authority was responsible for the alleged failure. The intention of these subsections is to ensure that central government departments remain informed of investigations related to their subject areas, and are therefore able to contribute, even if an alleged infringement does not involve a lack of compliance on the part of the department or Ministers themselves. This definition of the "relevant Minister" also applies to other sections in this Part.
	Similarly, when an investigation is concluded, subsection (5) requires that the OEP provide a report to the relevant public authority, copied to the relevant Minister if necessary under subsection (10). The OEP may publish the report in full or part under subsection (9).
	Subsection (6) allows the OEP the flexibility to delay the preparation of this report if it considers that it may take further enforcement action (for instance, the service of an information or decision notice, or application for environmental review under section 38) in relation to the alleged failure. This is intended to ensure that the OEP is not required to prepare and release reports concerning an investigation while it is still considering or intending to take further enforcement action. However, should the OEP publish a report and further information subsequently comes to light, it will not be precluded from taking further enforcement steps in relation to the failure as a result of having already published a report.
	Under subsection (7), if the OEP has applied for an environmental review, judicial review, or statutory review it is not required to prepare a report.
	The required contents of this report are set out in subsection (8). A report must state whether the OEP considers that a public authority has failed to comply with environmental law, the reasons the OEP came to these conclusions, and any recommendations the OEP may have for the relevant Minister, the public authority in question and any other authorities.
	The OEP has discretion over whether to publish the report (in whole, in part or at all), in view of the possibility that some investigations may conclude that there is nothing of value to put in the public domain, while other investigations may involve matters of significant confidentiality or sensitivity. The OEP will exercise this discretion consistently with its duty to have regard to the need to act transparently (see section 23(2)(b)). Information that the OEP chooses not to proactively report and publish will still be open to requests for disclosure and will need to be considered under the applicable legislation dealing with such requests.