The Law Handbook 2024

Chapter 11.3: Environment and planning law 1031 Decisions made under the EPBC Act can be challenged by an individual or by a group that has been actively engaged in environmental protection for the preceding two years (s 487) (seek legal advice if you wish to do this). Protecting human health and the environment from pollution and waste Victoria’s environment protection framework Victoria’s Environment Protection Act 2017 ( ‘EP Act’ ) establishes the primary legal framework for regulating pollution and waste. It aims to protect the community from harm and nuisance (e.g. annoying sounds, harmful emissions and unsightly waste) and to protect the natural and urban environment (that is, the places we live, work, play and obtain our food and other resources) from further degradation. The EP Act establishes a range of compliance duties and a permissions framework for certain activities and regulates Victoria’s waste scheme. It is supported by the Environment Protection Regulations 2021 (Vic) ( ‘EP Regulations’ ). General Environmental Duty To prevent environmental harm, the EP Act is designed on a positive and proactive ‘duties’ framework, with the general environmental duty ( GED ) (s 25) as the primary obligation. The GED creates a positive duty for all Victorians to eliminate or otherwise reduce, so far as reasonably practicable,riskstohumanhealthandtheenvironment from pollution or waste before engaging in an activity and thereafter as knowledge of the risks emerges. This approach reflects the preventative approach adopted for regulating workplace safety (see also Chapter 11.7: Occupational health and safety.), though caution should be exercised in drawing too close a comparison despite the significant similarities with safety legislation ( Environment Protection Authority v Vista Estate Pty Ltd [2023] VSC 552, paras 21 to 48, per Quigley J ( ‘Vista case’ )). Further, to fulfil their GED, a person conducting a business or undertaking must consider five key components of risk identification, assessment and management or else they will be deemed to be in breach of their GED (s 25(4) EP Act). These components include requiring a duty holder to have systems to identify and respond to risks, to respond to harm if it occurs (e.g. pollution incident responses) and to provide training and supervise employees and others. To support those holding a GED under the new EP Act, the EPA has published materials to help duty holders understand the risks of harm that commonly arise in their activities and provided examples of how they can minimise those risks and fulfil their duty (see www.epa.vic.gov.au) . When considering what is ‘reasonably practicable’ for a person to meet their duty, regard should be given to how serious the harm is, how likely the harm is to occur, what is available and suitable to minimise the risks, and the cost of implementing those measures in proportion to the risk (s 6(2) EP Act), noting, however, that this section does not form part of the GED, but rather helps explain what should be considered in relation to the phrase ‘reasonably practicable’; see Vista case, para 48. Importantly, identifying the risks and the means of minimising those risks is not based solely on what a duty holder knows, but also on what is reasonable for a person in their position to know. This objective standard – referred to commonly as the ‘state of knowledge’ – provides the basis for new risks and new information on existing risks to constantly be updated and requires duty holders to adopt a continuous improvement approach to compliance. It also means that, in addition to the EPA, industry associations, community organisations, research institutions and national and international bodies all have a role in contributing to and improving the state of knowledge on risks to human health and the environment, and how to minimise those risks. Finally, it is not good enough to simply implement any risk-control measure. The GED requires a person to first aim to eliminate the risks of harm so far as reasonably practicable and only after that consider ways to reduce the risk (s 6(1)). This creates a preference for the highest form or risk control over any measures that simply manage the risk. It also means that measures that rely on humans remembering to do the right thing are generally the least preferred, or at least should not be relied on alone where the risks are significant. This approach reflects the well-established ‘hierarchy’ of risk controls established under workplace safety law (see Chapter 11.7: Occupational health and safety).