The Law Handbook 2024

1036 Section 11: Rights, activism and fair treatment at work The development licence procedure is meant to enable the EPA to become involved in the design of industrial processes as early as possible. Therefore, the development licence inquiry stage of the process creates a good opportunity for suitable conditions to be applied to the project and to build prevention of harm into the design. Submissions are invited from the public and relevant agencies, and objections must be lodged within 15 business days (s 52(2)(d) EP Act). The EPA considers the comments and submissions received. It may convene a ‘conference of interest persons’ (under s 236) to consult all those with an interest in the development proposal. This conference provides an informal way for the EPA to consider all the issues related to the proposal. The procedural obligations associated with these conferences require the EPA to appoint a convenor who presides at the conference – and who makes recommendations that must be taken into consideration by the EPA. The EPA must refuse to issue a development or operating licence or permit if it considers the activity to pose an unacceptable risk of harm to human health or to the environment (ss 69, 74, 81 EP Act). Certain people can apply to VCAT to review an EPA decision to grant a development licence or an EPA decision to remove the suspension of an operating licence. The application must be made to VCAT within 15 business days of EPA’s decision (s 434 EP Act). For the person to be eligible to apply to VCAT, their interests must be affected by the EPA’s decision on specific grounds. These grounds include that EPA’s decision unreasonably and adversely affects the person’s financial, physical or personal interests; or that an activity would, if conducted in accordance with the licence, lead to a contravention of the GED. It is yet to be seen how broadly this eligibility test will be interpreted. A statement of the grounds to be relied on at a VCAT hearing must be served on the applicant for a development licence and the responsible authority (cl 56, sch 1 VCAT Act). Here, ‘responsible authority’ probably refers to the EPA. Although, the responsible authority is usually the council or other authority responsible for issuing planning permits and implementing planning schemes under the PE Act . Until this ambiguity in the VCAT Act is cleared up, it is advisable to serve a copy on the relevant council as well. Failing to properly formulate a statement of grounds may result in a third-party objector paying substantial costs (see ‘Appealing a permit decision’, above). Therefore, it is important to formulate the grounds for review around the restrictions noted above. Obtaining legal advice is recommended. In making its decision, VCAT must take certain matters into account (s 435 EP Act) including the relevant planning scheme and any relevant Environment Reference Standard. If a planning permit is also required, an appeal relating to both applications may be heard together. This means that broader planning issues can be considered. The EPA has a broad power to issue permissions subject to conditions (s 54 EP Act) and can suspend or revoke a person’s right to conduct a permission activity due to non-compliance with the permission or where the holder is no longer considered to be a fit and proper person to engage in those activities (ss 59, 60). The EP Act also creates several pathways for members of the community to challenge the decision to issue a development licence or reactivate a surrendered operating licence as well as taking direct action to hold the permission holder to account. Activities that require permission from the EPA or council Permission for constructing, installing or altering an onsite wastewater management system (sometimes called a ‘septic system’) is required under the EP Act. Unlike other permissions, such permissions are approved by council. Councils also have a range of powers under Part 5.7 of the EP Regulations 2021 to inspect and take enforcement action regarding the maintenance of such systems. Environment reference standard A new concept created under the EP Act is the environment reference standard ( ERS ) (Part 5.2 EP Act). The ERS is made up of many ‘reference standards’ that cover four aspects of Victoria’s environment: • ambient air; • ambient sound; • land; and • water (surface water and groundwater). The purpose of the ERS is to express the qualities associated with the environment that the Victorian community values and wants to achieve or maintain.