The Law Handbook 2024

Chapter 11.3: Environment and planning law 1035 noise duties owned by a business or organisation can be found on the EPA’s public register (www.epa.vic. gov.au/about-epa/public-registers/permissions) . Smoke As with odour and dust, smoke is a type of pollution and/or waste that is covered by the GED and by provisions in the EP Regulations 2021. Smoke that is visible for more than 10 seconds that is emitted from motor vehicles is prohibited and can attract fines (reg 136 EP Regulations 2021). The manufacture and sale of solid fuel heaters is prohibited unless the heaters comply with the applicable Australian Standards (div 2 pt 5.2 EP Regulations 2021). The burning of waste is prohibited under the EP Act (ss 115, 133), subject to some exemptions. Other activities may be subject to permission conditions around the generation of smoke; for example, the incineration of waste is subject to permission requirements. Activities that require permission from the EPA As well as being subject to the GED, some activities that generate pollution or waste are deemed to be unlawful unless the person engaging in the activity has permission from the EPA to engage in that activity. Activities requiring permission are set out in the table in Schedule 1 of the EP Regulations 2021 (‘ Schedule 1 activity ’). Known as ‘permissions’, these are statutory approvals that allow the permission holder to engage in an activity provided they meet any applicable conditions. The level of risk of harm to human health or the environment that the activity poses generally dictates the type of permission required, with licences reserved for activities that pose the greatest risk. The types of permissions include: • registrations – these are issued automatically on application and address minor or routine activities (e.g. operating a dry-cleaners or a small waste transfer station); • permits – these are approved by the EPA or council; permits generally apply to routine activities (e.g. installing a septic tank, transporting hazardous wastes, and servicing smaller landfills), subject to standard conditions and a level of assessment; • development licences – these apply to large and complex activities, previously called ‘works approvals’ under the EP Act 1970 (e.g. setting up a new landfill, establishing large waste resource recovery operations, and setting up large scale animal industries); • operating licences – these are often required after fulfilling a development licence condition and set ongoing conditions for operating, monitoring and reporting of activities (e.g. hazardous waste treatment, sewerage treatment plants, and large organic waste processing). It is an offence for a person to engage in an activity that requires permission before being granted or issued that permission (pt 4.2 EP Act). However, a person wanting to undertake a Schedule 1 activity may instead apply for an exemption from the requirement to hold a permission. This would also usually be based on initial EPA advice that the activity poses a lower risk. When determining whether to grant an exemption, the EPA must have regard to certain prescribed matters. So, for licence exemptions (div 4, pt 4.4 EP Act), those matters are set out in regulation 24 of the EP Regulations 2021 and include such things as whether the person is a fit and proper person, whether the best available techniques or technologies will be used, whether granting the exemption may adversely affect human health or the environment, the interests of any other person or any environmental values set out in the Environment Reference Standard ( ERS ) (see below). The EPA is required to maintain a public register that lists all the permissions issued under the EP Act, and the conditions that apply to those permissions ( www.epa.vic.gov.au/about-epa/public-registers/ permissions) . A permission holder must also meet their GED in relation to risks of harm not specifically addressed by their permission conditions. Before granting a development licence or operating licence, the EPA must satisfy all the procedural steps set out in Chapter 4 of the EP Act. For development licences, this includes: • the EPA publishing a notice of any applications it receives (s 52 EP Act) consistent with the EPA’s Charter of Consultation; • ensuring the person is fit and proper to engage in activities that require permission; and • taking into account any comments received in relation to the notice of application (s 69).