Environment Protection Authority Victoria
The EPA is the principal environment project agency in Victoria. The EPA is responsible for administering the EP A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation.. The EPA regulates all activities relating to the (1) To fulfil an obligation or be released from an obligation. For example, a debtor can discharge a debt by paying it; a prisoner can be discharged (released) from jail. of Something that does lasting damage to land or alters the nature of the property so that it can no longer be used in the same way., including emissions into air and water, noise, contaminated sites, municipal waste, and the generation, handling, treatment and disposal of industrial waste.
The EPA’s decisions to approve licences and work must be based on state environment protection policies and a Something of value, such as money, given by one person to another person as part of a contract. of the environmental benefits of particular licence conditions.
The Principles of Environment Protection, introduced in an A change made to a legal document or Act of parliament. to the EP Act, must be considered in the EPA’s decision-making. These encompass the concerns of ecologically sustainable development (s 1A–1L).
Amended Environment Protection Act
In 2015, the Victorian Government commissioned a review of environment protection in Victoria. The findings of the review, delivered in 2016, recommended extensive changes to the functions and responsibilities of the EPA, including substantial legislative reforms.
The Victorian Government accepted the review’s recommendations, including improving pollution-monitoring systems and public access to monitoring data, improving civil enforcement rights, introducing higher penalties for breaching environmental law, and introducing a general duty not to pollute.
In 2017, the Victorian Parliament passed the Environment Protection Act 2017 (Vic) (‘EP Act 2017’) that introduced a new objective for the EPA to ‘protect human health and the environment by reducing the harmful effects of pollution and waste’. This new objective marks an important evolution in Victoria’s environment protection laws; human and environmental health must be at the fore of decisions made under the EP Act 2017.
In 2018, the Victorian Parliament passed the Environment Protection Amendment Bill 2018 (Vic) (‘EP Amendment Act’). The EP Amendment Act A document that sets out what a person wants to happen to their money and other property after they die. introduce substantive changes to the way pollution will be permitted, regulated and enforced in Victoria.
Environmental law and COVID-19
The COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) amended the EP Amendment Act to delay the new environmental law and subordinate legislative instruments developed under the new laws coming into force to 1 July 2021.
The centrepiece of the EP AmendmentAct is the introduction of a new General Environmental Duty (GED), which will apply to all persons who engage in activities that may harm human health or the environment from pollution or waste. The GED will require these persons to minimise the risk of harm as far as reasonably practicable. The GED is based on the general duty to minimise harm in occupational health and safety law.
With a focus on the GED, the EP AmendmentAct represents a significant shift in how pollution laws will work in Victoria. The current emphasis on responding to pollution and waste incidents – alongside the regulation of larger sources of pollution and waste – is to be replaced by an emphasis on preventing or reducing the risk of pollution and waste incidents occurring in the first place. A more graduated approach to regulating particular industries and activities will also be introduced. The GED is intended to drive improvement in practices to prevent harm to human health and to the environment.
State environment protection policies
Decisions by the EPA to approve licences and work must be based on state environment protection policies (SEPPs) and waste management policies (WMPs) (ss 16–19 EP Act). These policies set overall environmental standards and objectives.
There are SEPPs on many topics, including air quality, the water in Port Phillip Bay, industrial and entertainment noise, and the management of municipal tips. All SEPPs are available on the EPA’s website (www.epa.vic.gov.au).
SEPPs contain fixed and ambient standards that maintain and protect ‘beneficial uses’ of the environment. For example, SEPPs for specific water catchment areas protect the beneficial use of the water for the purpose of drinking. Fixed standards prescribe maximum emissions from fixed points. Ambient standards establish minimum environmental quality standards, which allow emissions to change as the level of pollution in the environment increases or diminishes.
SEPPs are created on the EPA’s recommendation, after a period of public advertisement and consideration of submissions (ss 16–19 EP Act). The EPA must take into account financial, social and environmental considerations when recommending standards for SEPPs. Before coming into effect, the draft SEPPs and WMPs must be put before state parliament with a policy impact statement.
SEPPs form the basis for works approval and licensing decisions and are also the basis for regulatory requirements and permit conditions under other Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute., such as the PE Act and the Mineral Resources (Sustainable Development) Act 1990 (Vic).
Environment Protection Amendment Act
Under the EP Amendment Act, SEPPs will be abolished as legislative instruments. They will be replaced by a range of regulatory tools including environmental reference standards, regulations, obligations for managers of land and infrastructure, orders, compliance codes and guidance documents that, in substance, translate most of the content contained in the SEPPs into new legislativeinstruments.
How pollution is regulated: Offences, works approvals and licences
The EP Act sets out specific pollution offences that cover pollution to water (pt V), air (pt VI), land (pt VII), littering (pt VIIA) and noise (pt VIII).
The EPA also uses licences and works approvals to control the discharge of emissions into air, land and water. Licences and works approvals are required for ‘scheduled premises’. Scheduled premises are set out in the Environment Protection (Scheduled Premises) Regulations 2017 (Vic).
Licences are required for emitting, discharging or depositing waste in the environment, disposing waste, treating waste, or handling ozone-depleting substances at certain types of premises (s 20 EP Act). Licences are also required to transport certain types of waste.
Works approvals are required for new developments that could produce a potentially harmful discharge into the environment or an increase or change in an existing discharge (s 19A). A works approval provides an overall framework for controlling discharges and the effects of an activity both offsite and onsite. Works approvals specify the type and volume of discharges for which licences may be issued for the premises.
The main idea behind the works approval procedure is for the EPA to become involved in the design of industrial processes as early as possible. Therefore, the works approval inquiry creates a good opportunity for suitable conditions to be applied to the project.
Applications for works approvals must be publicly advertised in a state-wide newspaper (ss 19B(3)(b), 20(8)(b)) and referred to local councils, the Victorian Government Department of Health and Human Services (DHHS) and other authorities.
Submissions are invited from the public and relevant agencies, and objections must be lodged within 21 days (s 19B(b)(iv)). The EPA will consider comments and submissions and may convene a conference to resolve differences between parties (s 19B(6)). The EPA must take into account any resolutions of this conference and any recommendations of the conference chairperson.
Generally, licence applications are not subject to public submissions, unless a company fails to apply for a works approval and commences building in circumstances where a works approval is required.
If this occurs, the application or licence amendment goes through the same procedure as a works approval (s 20(8), 20A(6)).
A licence will generally be issued unless the works approval was not complied with, so breaches of the works approval are a point on which records should be kept, and complaints and submissions made.
Environment Protection Amendment Act
Under the EP Amendment Act, works approvals will be replaced by ‘development licences’. The licensing regime will be replaced by a permissions regime that will, in addition to compliance with the GED, impose obligations depending on the degree of risk of harm to human health or to the environment posed by a specific activity.
The EP Amendment Act will introduce new and substantial criminal and civil penalties for non-compliance with the Act. These include penalties for breach and aggravated breach of the GED, failure to notify the EPA of a pollution incident, and failure to comply with a permit.
In addition to the EPA taking enforcement measures for breaches of the EP Amendment Act, third-party enforcement rights will come into force in mid-2022. These third-party enforcement rights will allow an eligible person whose interests are affected, and who has leave of the An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate., to seek a remedy for a contravention of, or non-compliance with, the new EP Act.
This is an important development as it allows community members to take legal action for contravention of, or non-compliance with, the new EP Act. Currently, other than third-party remedies available at (1) The system of law developed by the English courts through precedent and adopted in ‘common law countries’ in the British Commonwealth (as opposed to Roman law (civil law) or ecclesiastical law). (2) The case law made by judges in that system. (3) Case law that is not part of the law of equity. (4) Historically, the rules of law common to all people in England, as distinct from local or customary laws. (e.g. by way of The court’s review of an administrative decision on the basis of a legal error in the decision-making process. For example, a court can review a decision by an official on the ground that the official is biased. Compare review on the merits. See also administrative act.), only the EPA can take enforcement measures for breaches of the EP Act.
The Environment Protection Authority and planning
The EPA’s grant of a works approval is conditional on planning approval being granted for the relevant activity, if the relevant planning scheme requires a permit (ss 19B(7A), 19B(7B) EP Act in relation to a works approval; s 20(8)(g), 20A(6)(g) in relation to licences).
The EPA’s decisions are also linked to the planning system through the An authority or government department to which a planning permit must be referred for advice before it is granted. mechanism. As a referral authority recognised in planning schemes, the EPA can impose conditions on, or veto, the decision of a local council (i.e. the The government department or agency that is named in an Act of parliament as the body with power to exercise authority in a particular situation, for example granting permits or conducting inspections.) to grant a planning permit, if a proposed development requires an EPA licence or works approval.
The development of ‘neighbourhood environment improvement plans’ (NEIPs) must be done with municipal strategic statements and any relevant planning schemes in mind. Planning powers must be exercised with regard to a NEIP (s 19AI(3)(i), (l)).
A major project might require an amendment to the planning scheme, an EES and a works approval. In such cases, the works approval application is usually considered at the same time as the EES. Where a works approval is advertised jointly with an EES, any submission by a member of the public must be made with submissions on the EES. Where a works approval is issued substantially in accordance with the EES, the works approval is not subject to third-party appeals to VCAT (ss 19B(3B), 33B(1B)) (see ‘Appealing the EPA’s decisions’, below).
A proposal likely to have significant impact on a matter of national environmental significance must be assessed under the federal environmental impact assessment system established by the EPBC Act.
The EPA has the power to enter into sustainability covenants with industries that might significantly impact the environment (s 49AA–49AP). This could achieve more efficient use of resources and reduce the ecological impact of products and services, and the processes by which they are produced.
Appealing the Environment Protection Authority’s decisions
A review of an EPA decision about a works approval may be sought at VCAT within 21 days of the approval being granted (s 33, 33A, 33B EP Act). Appeals in relation to licences can also be made, but only where work has commenced without the necessary works approval. Appeals by objectors are called third-party appeals.
An objector who is ‘a person whose interests are affected’ may ask VCAT to review an EPA decision to grant a works approval (s 33B(1)). The effects on a person’s interests need not be economic; and they may be direct or indirect (s 5 VCAT Act).
However, the grounds for review that third-party objectors may advance are limited. The objectors must show that there will be a discharge of waste, or similar environmental risk, that will adversely and unreasonably affect them, or that a situation will be created that is inconsistent with a SEPP (s 33B(2)–(2c)). If there is no relevant SEPP, third-party objectors must show that the works approval conditions would result in pollution or an environmental hazard (with respect to licensing of industrial waste sites).
A statement of the grounds to be relied on at the VCAT The time and place at which a court or tribunal hears the parties argue their case and makes a decision. must be served on the applicant for a works approval 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 local 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 local council as well.
During the VCAT hearing, a A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses. is not restricted to only using the grounds outlined in the statement of grounds given to the EPA and the local council (s 36E EP Act). However, failing to properly formulate a statement of grounds may result in a A person appealing against a decision to grant approval for developments that may be harmful to the environment. paying substantial The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity 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 takes into account matters including (s 37A EP Act) the relevant planning scheme and SEPPs.
If a planning permit is also required, the The review of the decision of a lower court by a higher court. If an appeal is successful, the higher court can change the lower court’s decision. on both applications may be heard together. This means that broader planning issues can be considered.
Environment Protection Amendment Act
Under the EP Amendment Act, a third party will be able to apply to VCAT to review an EPA decision to grant a development licence or an EPA decision to remove the Exclusion of a student from school for a stated period as a disciplinary measure (a less severe punishment than expulsion). of an operating licence. The third party’s interests must be affected by the EPA’s decision on specific grounds. These grounds include that the EPA’s decision unreasonably and adversely affects the person’s financial, physical or personal interests; or that a licence that permits an activity would, if conducted in accordance with the licence, lead to a contravention of the GED.
Where a site is suspected to be contaminated, the EPA can order the site to be assessed and, if necessary, remediated by the person who caused the contamination or by the occupier of the site. If they take no action within the time specified in the EPA’s order, the EPA can clean up the site and require the occupier to pay the cost. The EPA may also place a (1) A statement giving the details of a crime an accused person is claimed to have committed. (2) A personal property security. (3) A judge’s directions to a jury at the end of a case. on the A document created by Land Victoria that gives details of where a piece of land is, who owns it, any mortgage on it, and other restrictions on the title. Certificates of title are official copies made from registers kept for all land in the state. See also transfer of land. See also encumbrance. of the land in order to recover its costs (s 62 EP Act).
If land is to be rezoned to a more sensitive use (e.g. from industrial to residential use), the EPA must be notified, and can require the site to be assessed for contamination.
A person selling land that may be contaminated is under no obligation to notify the purchaser, or to test the land for contamination, unless a statement of environmental audit has been issued (s 53ZE).
The EPA maintains a register of contaminated sites that includes sites that the EPA has tested for contamination. However, the register is known to be incomplete. The EPA also has a register of sites suspected of being contaminated because of previous activities, but these are not disclosed to the public because they have not been tested.
Information and complaints
The EPA provides the following information:
- copies of regulations, SEPPs and WMPs and guidelines used as the basis for licensing;
- copies of licences and works approvals;
- any monitoring information required by licences or abatement notices;
- clean-up, pollution abatement, and penalty infringement notices;
- copies of EPA investigation files of licensees;
- scientific reports prepared as part of the process of developing SEPPs and guidelines, once the SEPPs or guidelines are finalised.
This is subject to exemptions under the The right of any person to access documents held by government agencies, except documents excluded by legislation. Act 1982 (Vic) and the EP Act, which requires licensees to give To agree to something being done, to approve an action or arrangement. See also informed consent. before the EPA can disclose information in relation to a manufacturing process or trade secrets (s 60 EP Act). See Chapter 12.5: Freedom of information law, for details of freedom of information exemptions.
Environment Protection Amendment Act
Under the EP Amendment Act, the EPA is required to maintain a public register that must contain certain information, including details of any enforceable undertakings, licences and permits that are in force. The register must also contain the final determinations of proceedings undertaken in a court or at VCAT under the EP Act to which the EPA was a party. The public register must also include compliance codes and guidelines that have been issued by the EPA.
Only people appointed by the EPA may prosecute offences against the EP Act (s 59). Similarly, the EP Act does not provide a right to To make people obey a law or the terms of an agreement, using police powers or court orders. the legislation or the conditions of licences or works approvals.
Complaints about industrial pollution and noise, discharge of solids, liquids or gases detrimental to health or the environment, offensive smells and obnoxious or hazardous dumps should be made to the EPA’s 24-hour pollution watch line (1300 372 842). Reports can also be made online via the EPA’s website at www.epa.vic.gov.au.
Complaints about noise and other discharges of Relevant or important. For example, material evidence is something that helps to prove an argument in a criminal case. or gas that are offensive to the human senses, dangerous constructions and ‘offensive industries’ (e.g. abattoirs and piggeries) may be made to the local council and to the DHHS and may also be made to the EPA. For more information about noise complaints, see Chapter 6.4: Neighbour disputes.
Environment Protection Amendment Act
The EPAmendment Act will impose a duty to notify the EPA of pollution and notifiable incidents. This duty will be imposed on people who are engaging in an activity that could give rise to a notifiable incident and where land could be contaminated. Failure to notify the EPA of a notifiable incident is a criminaloffence.
What action can the Environment Protection Authority take in response to pollution complaints?
The EPA usually visits the premises or the site of a complaint. If there is a persistent problem, the EPA can do a number of things.
A In Victoria, a child or young person under 18. See also infant. works notice can be served, directing an owner or occupier of a premises to correct the problem within a specified period if the problem is urgent and correction will cost less than $50 000 (s 31B EP Act). There is no appeal against a minor works notice.
A pollution abatement notice may be issued where a pollution problem, including noise, is less urgent and involves more substantial cost (s 31A).
Where waste being discharged into a sewerage system is causing a contravention of the sewerage authority’s licence or does not comply with standards prescribed by the EP Act, an abatement notice can be issued (s 28B). Various requirements might be imposed on the A person who has committed a crime. by the notice.
Appeals against such notices can be made to VCAT (ss 34, 35). Residents who have made complaints can assist the EPA by appearing as witnesses. Greater assistance can be provided if notes are made about an incident shortly after it occurs. People who are not appearing as witnesses but still wish to be heard should write to VCAT.
The EPA can direct a number of operators to take action to reduce the level of emissions where the problem is caused by the combined pollution of a number of premises, although no individual is exceeding the allowable level (s 31).
The EPA can also issue on-the-spot fines for infringements of the EP Act.
In more serious cases, the EPA can prosecute for discharges without a licence or in breach of the level permitted in the licence. There are also offences for failing to comply with a notice or A legally proper instruction by one person (or body) to another, so that the person is bound to take action, or make a decision, as instructed. Compare dictation. from the EPA, the use of prohibited substances, or emitting offensive odours.
Charges of aggravated pollution may also be brought, with heavy fines and jail sentences, for deliberate contamination that places the public at risk (e.g. ss 59E, 67AA).
Environment Protection Amendment Act
The EP Amendment Act largely maintains the range of tools available for the EPA to take reinforcement or remedial action where contravention of the new EP Act has occurred and bestows civil remedies on certain people. Notably, all Victorians must comply with the GED and are potentially liable for incidents that breach the GED.
Action by local council and residents
The public has no direct Found in a statute of delegated legislation. For example, a statutory authority or body is aperson or organisation that has special powers given by parliament to do work for the public benefit. rights to seek restraining orders, or abatement notices, or to prosecute for offences under the EP Act (s 59).
If planning permit conditions require compliance with EP Act licences, it is possible to seek an enforcement order in VCAT if the condition is breached (see ‘Enforcement’, under ‘Victorian Civil and Administrative Tribunal’, above).
Where a Doing something that stops another person fully using and enjoying land they own or occupy. For example, someone burning off smelly rubbish in their backyard might ruin a neighbour’s enjoyment of their garden. See also private nuisance; public nuisance. such as noise, dust or odour is, or is liable to be, offensive or dangerous to health, the local council can be asked to apply for an abatement notice in the Magistrates’ Court under the Public Health and Wellbeing Act 2008 (Vic) (‘PHW Act’). If the local council does not act within a reasonable time, a member of the public can apply to the court (see Chapter 6.4: Neighbour disputes, for more information about remedies under the PHW Act).
Even if polluters are acting within approvals or licences granted under the EP Act, they might still be liable to A court case in which one person or organisation sues another for compensation, or for some other court order. This is different from a criminal case, where the police bring criminal charges and the court may give the defendant a penalty, such as time in prison, if they are found guilty. Also called a lawsuit, a civil claim, a civil matter or a proceeding. under common law principles (s 65 EP Act) (see Chapter 10.1: An act that breaches a duty to take reasonable care and results in loss or damage to another person. See also tort. and injury).