The Law Handbook 2024

Chapter 11.3: Environment and planning law 1033 published guidance on contamination of land and compliance (see www.epa.vic.gov.au) . The duty to report contaminated land The duty to report contaminated land to the EPA (s 40 EP Act) requires that a person who manages or controls land and knows, or reasonably should know, that ‘notifiable contamination’ is present must notify the EPA. Like the duty to notify of incidents, this duty only applies to a subset of contamination. The definition of ‘notifiable contamination’ is set out in section 3 (referencing s 37) of the EP Regulations 2021. It incorporates reference to national standards relating to contaminated land, drinking water standards and marine and freshwater ecosystem protection. In recognition of the complexity of notifiable contamination, the EP Act requires the level of skills, knowledge and experience as well as access to advice to be considered when determining if someone should have known such contamination was present. The real value of this duty is to ensure the EPA is equipped to fulfil its objective of protecting the Victorian community and environment by having access to information on the most frequently encountered types of contamination. Waste duties The EP Act regulates waste from two often competing perspectives: prohibiting harmful conduct and promoting beneficial conduct. The EP Act seeks to make those who generate, transport, receive and dispose of waste accountable and responsible for acting lawfully. In doing so, the EP Act supports action to avoid waste generation in the first place and encourages the best outcome from materials that make up waste. The word ‘waste’ is defined broadly in the EP Act (s 3) – this definition is largely consistent with how waste is defined across Australia (see Nonferral Recycling Pty Ltd v Environment Protection Authority [2023] VSC 292, paras 427–430, per Guarde, J; and Dasma Environmental Pty Ltd v Environment Protection Authority [2022] VSCA 248, per Emerton P, Kennedy and Osborn JJA). Critically, the definition is not intended to describe types of substances, but rather the nature of relationships and values that surround such substances. It is well-recognised that a substance can be waste to one person and a valuable resource to another. Similarly, the same substance can be a ‘resource’ in one environmental setting (e.g. clean soil in a raised veggie garden) and can create an environmental risk in another (e.g. the same soil piled next to a stormwater drain or a creek). To ensure accountability of substances in all settings (especially where no one values such substances), the meaning of ‘waste’ is defined from an objective perspective of a person who does not want or cannot use the substance, and also where the substance is deposited or discharged into the environment in a way that alters the environment. ‘Deposit’ is defined, in relation to litter and waste, as the act of parting with the possession of litter or waste and includes disposal by burning and burying (s 3). Just because a substance is defined as ‘waste’ in the EP Act does not mean it is unvalued or that a person possessing waste has breached the EP Act. Instead, the EP Act makes those who generate, transport, receive and dispose of waste responsible for their role in managing waste. The more harmful or potentially mismanaged the waste, the more stringent the rules applicable to that waste. The EP Act divides waste into increasingly serious or hazardous categories – litter and municipal waste, industrial waste, priority waste and reportable priority waste – with the level of regulation increasing accordingly, commensurate with the risks posed by those waste categories. Part 6.2 of the EP Act creates objectives for waste obligations that make it clear that the intention is to encourage resource recovery in an environmentally sound manner. The waste obligations can be summarised as follows: • offences that apply to littering (s 115(1), (2) EP Act) and various scales of illegal dumping (s 115(3), (4)), which are enforceable by the EPA, councils and some other agencies by fine or prosecution; • duties on those who produce, transport and receive industrial waste (ss 113–135), which addresses the different participants in the supply chain of commercial and industrial wastes; and • duties that apply to ‘ priority wastes ’, as defined by the EP Regulations 2021, which include the most hazardous or routinely mismanaged waste types. Priority wastes require a higher degree of management by those handling the waste, including tracking of the movement of the waste. The EP Act also regulates waste disposal, including the approval of landfill and other waste-processing recovery activities (ch 4 EP Act), the collection