Protecting human health and the environment from pollution
Victoria’s environment protection framework
Victoria’s pollution and waste laws aim to protect the community from harm and nuisance (e.g. annoying sounds, harmful emissions, unsightly waste) and to protect the natural and urban environment (e.g. the places we live, work, play and obtain our food and other resources) from further degradation from pollution and waste.
One of the premises that underpins environmental law is a recognition of the need to mediate the interactions between humans and different parts of the environment. The legislative and regulatory systems introduced by governments seek to balance the competing rights, objectives and interests of individuals, the whole community and the environment.
Environment Protection Act 2017
In 2015, the Victorian Government commissioned a review of environment protection in Victoria. The findings of the review recommended extensive changes to the functions and responsibilities of Victoria’s Environment Protection Authority (EPA), including substantial legislative reforms. Importantly, it was recommended that the laws be updated to shift the focus from punishing harm to preventing harm.
In 2017 and 2018, the Victorian Parliament adopted and then significantly amended the Environment Protection Act 2017 (Vic) (‘EP Act‘), repealing the EP Act 1970. The Environment Protection Regulations 2021 (Vic) (‘EP Regulations 2021’) were then adopted and parts of the previous state environment protection policies were consolidated into a new statutory instrument called the Environment Reference Standard.
General Environmental Duty
To prevent environmental harm , the EP Act is designed on a positive ‘duties’ framework, with the General Environmental Duty (GED) (s 25) as the foundation obligation. The preventative focus of the EP Act is supported by a reframing of pre-existing features of the EP Act 1970. For instance, the licensing regime is now a permission scheme that supports a risk-based duties approach.
The GED creates a positive duty for all Victorians to eliminate or otherwise reduce, so far as reasonably practicable, risks before engaging in an activity and thereafter as knowledge of the risks emerges. This approach reflects the preventative approach adopted for regulating workplace safety. Such duties are designed to enable the relevant regulator body to intervene before harm occurs. (See also Chapter 11.7 Occupational health and safety.)
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 and to respond to harm if it occurs (e.g. pollution incident responses) and to provide training and supervise employees and others. These ‘deemed contraventions’ are modelled on similar obligations under Victoria’s safety laws.
To support those holding a GED under the new EP Act, the EPA has published materials (which are available on the EPA’s website) to help duty holders understand the risks of harm that commonly arise in their activities and providing examples of how they can minimise those risks and fulfil their duty.
When considering what is ‘reasonably practicable’ for a person to meet their duty, regard must be given to how serious and 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).
Importantly, identifying the risks and the means of minimising those risks is not based solely on what a duty holder knows, but also what is reasonable for a person in their position to know. This objective standard – referred to 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. 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).
The only significant harm-based offence that remains in the EP Act is an aggravated breach of the GED under section 27 of the EP Act (noting a transitional pollution offence in section 28 that will lapse in less than four years). This offence applies where a person intentionally or recklessly breaches their GED and this causes, or is likely to cause, material harm and the person knew (or should have known) that the material harm would be caused or would be likely to be caused. A breach of section 27 of the EP Act can result in a fine of up to 4000 penalty units (pu) and/or five years in jail. For a body corporate, the fine is up to 20 000 pu.
For the period 1 July 2022 to 30 June 2023, one penalty unit (pu) equals $184.92 under Victorian state law and $222 under Commonwealth law.
While the GED is the key obligation under the EP Act, a range of other duties have been created – some of which are a revision of current obligations – but others are genuinely new, to support the GED and help achieve the EP Act objectives.
Pollution incident duties
Two new duties apply where a person’s activities result in a pollution incident:
- the duty to restore: the duty to take action to respond to harm caused by a pollution incident;
- the duty to notify: the duty to report certain pollution incidents to the EPA.
The duty to restore polluted land
The duty to restore polluted land (s 31 EP Act) arises when a person’s activity results in a pollution incident that causes, or is likely to cause, harm to human health or to the environment. Where this occurs, the person must restore the affected area to the state it was in before the pollution incident occurred, so far as is reasonably practicable. A breach of the duty to restore is not a criminal offence. However, a person may be directed to comply with this duty (e.g. through a remedial notice). The EPA has published guidance on this duty as well as videos on the topic (which are available on the EPA’s website).
The duty to report pollution
The duty to report certain pollution incidents to the EPA (s 32 EP Act) applies where a person’s activity causes a pollution incident and material harm is caused or is likely to be caused. Unlike the duty to restore, which applies to any level of harm, the duty to notify only applies to more serious incidents.
‘Material harm’ is defined in section 5 of the EP Act and includes incidents that cause a level of harm that is more than negligible, impacts an area of high-conservation value or of special significance, or where rehabilitation of the affected area will cost more than $10,000.
Unlike the duty to restore, failing to meet your duty to notify is a criminal offence. This new duty brings Victoria into line with all other Australian jurisdictions.
Contaminated land duties
Two new duties apply in relation to land that has become contaminated from human activities:
- the duty to manage: the duty to minimise the risk of harm from contaminated land;
- the duty to notify: the duty to report certain contaminated land to the EPA.
As with the pollution incident duties, the duty to manage contaminated land is only enforceable through directions and notices, whereas a failure to report contaminated land is an offence. Importantly, the contaminated land duties are not associated with engaging in an activity, but instead apply to a person or to the management of contaminated land, whether or not the person is responsible for the contamination being present.
The duty to manage contaminated land
The duty to manage contaminated land (s 39 EP Act) requires a person to minimise the risk of harm from the contamination, so far as reasonably practicable. While this duty is new to the EP Act, it reflects the obligations under the previous state environment protection policies that were in place for decades. This duty is most likely to apply to land that has historically been used for polluting and waste-generating activities (e.g. by industrial processes) before environment protection was in place. The duty may also be relevant at sites where there has been an environmental incident (e.g. a chemical spill or leak) or where hazardous waste was dumped or contained in soil brought on site. The EPA has published guidance on contamination of land and compliance (which is available on the EPA’s website).
The duty to report contaminated land
The duty to report contaminated land to the EPA (s 40 EP Act) requires that a person in management or control that 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.
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. 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 of waste-disposal levies (Pt 6.6 EP Act), and the establishment of Waste and Resource Recovery Groups (WRRGs) that are responsible for planning the waste and resource-recovery infrastructure (Ch 13 EP Act). A new government agency called Recycling Victoria has been created and will replace the WRRGs by the end of 2023.
Waste management can be complex and highly contested. The EP Act is not intended to be comprehensive in managing all waste challenges faced by the community: its role is to set a legal framework that makes rules for handling waste to ensure participants remain accountable, while not unduly inhibiting resource recovery. The EP Act recognises the importance of waste avoidance (ss 18, 140 EP Act) and role of other organisations (e.g. Sustainability Victoria) (s 141) to help achieve a ‘circular waste economy’.
Noise, odour, dust and smoke offences and duties
Noise, odour, dust and smoke issues are regulated by a combination of the GED and specific provisions in the EP Act and the EP Regulations 2021. These issues may also be addressed by councils under the nuisance provisions of the Public Health and Wellbeing Act 2008 (Vic).
Noise, which includes sound and vibration, is covered by the GED as one type of pollution that requires the risks of harm to be minimised so far as reasonably practicable. Noise is also subject to a range of additional obligations in the EP Act (Part 7.6) and the Environment Protection Regulations 2021 (Vic) (‘EP Regulations 2021’) (Part 5.3). These obligations include that a person must not emit an ‘unreasonable noise’ from a place or premises that is not a residential premises (s 166 EP Act), nor from residential premises (s 167), nor from an entertainment venue (s 169). A person must not emit ‘aggravated noise’ from anywhere (s 168).
The EP Regulations 2021 set out types of noise that are prohibited or otherwise regulated (e.g. by operating times). A person who needs permission to undertake an activity (see ‘Activities that require permission from the EPA’, below) may have to meet specific noise conditions.
‘Unreasonable noise’ is defined in the EP Act (s 3) as ‘noise’ (which includes sound and vibration) that:
- is unreasonable having regard to its volume, intensity, duration, character, the time, place and other circumstances in which it is emitted, and how often it is emitted; or
- is prescribed in the EP Regulations 2021 to be unreasonable noise.
Part 5.3 (Noise) of the EP Regulations 2021 prescribes the noise levels (which, if exceeded, amount to unreasonable or aggravated noise) in relation to noise from residential premises (Div 2 Pt 5.3 EP Regulations 2021); commercial, industrial and trade premises (Div 3); indoor and outdoor entertainment venues (Div 4); and wind-energy facilities (Div 5). The EP Regulations 2021 also require the EPA’s document, ‘Noise limit and assessment protocol for the control of noise from commercial, industrial and trade premises and entertainment venues’ (‘The Noise Protocol’) to be used in conducting any prediction, assessment, measurement or analysis of noise under the environment protection framework.
Residential noise issues can be enforced directly by complainants (e.g. in the Magistrates’ Court) or by police officers or council officers (see ‘Compliance and enforcement under the EP Act’, below).
Some types of residential construction noise breaches can be enforced by council or the EPA. The EPA has delegated to councils the power to enforce the provisions relating to noise from construction, demolition and removal of residential premises. The EPA enforces compliance with noise obligations owed by businesses and other organisations, including music venues.
Noise breaches can generally be enforced through infringements or by an enforcement officer directing an alleged offender to address the source of the noise. In some instances, remedial notices can be issued to address long-term noise issues.
Odour and dust
Odour and dust issues are generally covered under the permissions that apply to certain types of activities (see ‘Activities that require permission from the EPA’, below) but can also be addressed under the GED. A copy of any applicable odour, dust and noise duties owned by a business or organisation can be found on the EPA’s public register.
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 a permission are set out in the table in Schedule 1 to 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 risks.
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 (Part 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 (Division 4, Part 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).
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. A permission holder must also meet their GED in relation to risks of harm that are not specifically addressed by the permissions 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).
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).
A third party 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). The third-party’s interests must be affected by 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.
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 VCATAct). 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 takes 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 have 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 (‘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;
- water (surface water and ground water).
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. The ERS will be used to inform standards for environmental segments that will apply across Victoria. These standards will not only apply as part of EP Act regulation, but will extend to all people, entities and agencies of the qualities applicable to achieve protection of the environment.
The ERS identifies environmental values that represent aspects of Victoria’s environment, how those aspects function, or how we use that part of the environment, and provides a means of measuring performance. Examples of values include how clean water is for the purposes of drinking or, a level of sound that supports the community to sleep at night, and the quality of air that supports ecosystems to function.
The ERS establishes indicators and objectives that are used to assess if an environmental value is being achieved, maintained, or threatened. Most of the indicators and objectives have been retained from the ‘benefical use’ concept established under the previous state environment protection policies.
Importantly, the ERS is not intended to be a compliance standard: it is used to measure, in a general sense, important features of the environment. The ERS must be considered by the EPA when deciding on a development or operating licence application and the EPA’s environmental auditors must consider any relevant ERS when performing auditing work. More broadly, a responsible authority may consider the ERS under the PE Act if relevant to the planning decision such as whether granting the permit would have a significant effect on the environment.
Over time these environmental values, measures and objectives will inform guidance and other instruments that shape Victorian’s thinking and approach to the quality of land, water, air, noise and other segments of the environment.
The EPA has published guidance on how to understand and apply the ERS and information on how each environmental value was derived, including the limitations of their use: https://www.epa.vic.gov.au/about-epa/laws/epa-tools-and-powers/environment-reference-standard.
Compliance and enforcement under the EP Act
Environment Protection Authority
The EP Act is administered by the EPA and has the overarching statutory objective of protecting human health and the environment from the harmful effects of pollution and waste. The EPA leads environment protection in Victoria, primarily through its administration of the EP Act, but also as an advisor to governments and as a referral authority for matters of environmental protection. The EP Act vests powers in the EPA to take action to require compliance with the GED and other obligations. This is done by the EPA issuing remedial notices or commencing legal proceedings to compel compliance or to restrain action that poses a risk of harm.
The EPA is a statutory authority, governed by an independent board, with the statutory objective to protect human health and the environment by reducing the harmful effects of pollution and waste (s 357(1) EP Act).
The EPA’s functions include:
- monitoring and assessing environmental quality and risks of harm to human health and the environment;
- responding to harm and risks of harm;
- providing advice and recommendations to the Environment Minister;
- liaising and collaborating with Commonwealth, state, territory and local governments;
- providing information and education to the Victorian community on environmental protection;
- promoting, monitoring and enforcing compliance with the EP Act.
The EPA is expected to administer the EP Act with regard to 11 principles of environment protection (ss 11–23 EP Act) that encompass integration of environmental, social and economic considerations, intergenerational equity, responsibility for environment protection, and evidence-based decisions. The EPA and the Environment Minister are required to take the principles into account for certain decisions, including certain permissions and the setting of environmental standards.
The EPA also administers the Pollution of Waters by Oil and Noxious Substances Act 1986 (Vic), which creates Victoria’s legal framework for the protection of the sea from pollution by oil and other noxious substances and to fulfil Australia’s commitments under the International Convention for the Prevention of Pollution from Ships (1973).
The EP Act provides multiple heads of power for the EPA, and in certain circumstances other bodies (e.g. councils) and individuals to ensure accountability and compliance with obligations under the EP Act.
The EP Act vests powers in the EPA to undertake investigatory action, to gather information and evidence and to take interventions such as the issuing of remedial notices, the seeking of civil remedies and orders from the court to compel compliance or prevent non-compliance. The EP Act also enables civil and criminal proceedings where the EPA considers that actions, or the failure to take action constitutes a contravention, or offence under the EP Act.
The EPA publishes a range of policies and positions on its approach and strategy in fulfilling its function and exercising its powers under the EP Act (see www.epa.vic.gov.au).
The EPA’s options for taking regulatory action
The EPA can enforce the EP Act in several ways. It can appoint authorised officers to exercise certain powers under the Act, which include powers of entry, investigation and to issue remedial notices for non-compliance. There are two categories of such officers:
- Environment Protection Officers whose role is generally to monitor and pursue compliance with permission holders, businesses and other organisations – including investigating pollution reports and other complaints; and
- Officers for the Protection of the Local Environment who are EPA staff based in local councils who provide quick compliance and enforcement responses to smaller local pollution reports, particularly in relation to litter, illegal dumping, noise, odour and dust.
Remedial notices and site management orders
The EPA can issue a range of remedial notices. These notices include improvement, prohibition and environmental action notices directing a person to comply with their duties (including the GED). The EPA can also issue notices directing a person to take action to address a risk of harm or contamination (ss 271–274 EP Act) (e.g. to carry out works or stop a particular activity).
A person who receives a remedial notice may be entitled to have it independently reviewed by another person from the EPA or VCAT (ss 429, 430 EP Act). The EPA can also issue a ‘site management order’ to ensure the long-term management of contamination or other harmful circumstances at a site. These orders may build upon and improve the current use of section 173 agreements under the PE Act.
Civil remedies and restraining orders
The EPA is empowered to obtain injunctive-type remedies and orders from a court (including the Magistrates’ Court) requiring a person to comply with a duty and obligation they owe under the EP Act (Part 11.4). If the court is satisfied, on the balance of evidence that a person is not complying or has not complied with a permission or is in breach of another obligation (e.g. the GED), particularly where there is a risk of harm to human health and the environment it is able to make a number of orders.
The court can order that duty holder to take action if the court considers it reasonably necessary to address the non-compliance or seek a financial assurance from that person as a condition of engaging in the conduct. Significantly, these orders can be urgently sought by the EPA and include seeking what is known as an ex parte order (i.e. an order made in the absence of the person who is the subject of the order), where the circumstances warrant the making of an (interim) order.
Enforcement options and orders
Stopping non-compliance and taking remedial interventions will not always satisfy regulatory enforcement outcomes. Where the EPA believes an action, or failure to act is either a contravention or offence under one of the obligations of the Act, including a breach of the GED, it is able to commence either civil or criminal proceedings. As to whether a civil or criminal pathway is pursued, is a matter for the EPA. However, either way, the range of orders (summarised below) that can be imposed by a court are identical irrespective of which pathway is pursued.
In some circumstances enforcement outcomes can be achieved by entering an enforceable undertaking. The EPA may accept an enforceable undertaking from a duty holder in relation to any matter that it has a power or function under the Act and Regulations (Part 11.2 EP Act). This includes accepting an enforceable undertaking as an alternative to legal proceedings. Generally, an enforceable undertaking provides a means of achieving a tailored enforcement outcome, that includes multiple outcomes and benefits. An enforceable undertaking can include restorative measures and will frequently enable community participation. They can also enable system and behaviour change for the duty holder, extending often to its sector or industry colleagues. Where the EPA accepts an enforceable undertaking it is required to publish the terms of the undertaking on the public register (s 456).
In matters where the EPA determines that proceedings should be bought against a person – there are a range of orders that can be sought by the EPA, in addition to any penalty the court may impose (Part 11.6 EP Act). The orders that can be made by a court when sentencing (for criminal proceedings) or judgement (for civil proceedings) include any of the following orders:
- a general order requiring a payment other than a fine (s 328 EP Act).
- monetary benefit order to redress any benefit or profit made by the offender by breaching the EP Act (s 329).
- an adverse publicity order to publicise the nature of contravention or offence, and any impacts to the community (s 330).
- a general restoration and prevention order to prevent, minimise or remedy harm, and to reduce and prevent any further recurrence (e.g. establishing an education and training program, revising internal operations and systems) (s 331).
- a restorative project order or payment to the ‘restorative project account’ for a project for restoring or enhancing the environment (s 332).
This range of penalty orders will help to ensure that, as an outcome of legal proceedings the EPA has helped to achieve a combination of outcomes. These measures can achieve specific and general deterrence along with punitive and restorative outcomes. Collectively, they enable courts to ensure that orders take account of and fully reflect the impacts of an offence or contravention.
Restorative justice avenues
The consequences of a contravention or offence can be various, and complex, and often with significant impacts to multiple people and communities. Restorative processes are designed to allow those who have been affected or harmed, to be involved in some way, in the just resolution of the matter. Generally, a restorative process is one that enables the participation of those impacted or involved, allowing all parties to speak directly, and to be heard in a facilitated forum.
A restorative process is purposeful and is designed to enable participants to shape and inform the resolution of the matter, whether it is to achieve compliance, prevention of further issues, or to inform an enforcement outcome. Ultimately, the purpose of a restorative process is to support the resolution of conflict, and to bring about a new understanding, and collaboration in working out solutions to prevent a continuing or reoccurrence of issues.
The EP Act establishes new ways to achieve restorative outcomes. Through enforcement proceedings these include:
- an enforceable undertaking process, which includes a participatory process to inform ways of ensuring the community and those impacted by an offence or contravention are involved in the enforceable undertakings brought about to address the issues in question (s 300 EP Act);
- a court-ordered restorative justice project as part of the outcome of civil or criminal proceedings (s 332);
- the hearing and receiving of an impact statement (s 335) from a person, organisation or community that is affected by the contravention or offence;
- by a restorative justice process in which court proceedings are adjourned to facilitate affected parties to seek to resolve the matters arising from the alleged contravention and by agreeing on an outcome that recognises the harm caused to the community or the environment (s 336).
The option of a restorative justice process is of particular significance, as it is a new avenue that can enable those impacted by a contravention or offence to participate directly in the proceedings.
Two landmark cases in the New South Wales Land and Environment Court – Garrett v Whitlam (2007) 151 LGERA 92 and Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291 – are examples of how a restorative justice process might work under the EP Act. Both cases involved the destruction of cultural heritage of significance to Aboriginal Traditional Owners. Garrett v Williams involved the destruction by Pinnacle Mines (near Broken Hill) of a landscape of sacred cultural significance to its Traditional Owners. The Clarence Valley Council matter involved the destruction of a sacred scarred tree in the centre of town, by council workers. In both matters, a court convened a restorative conference that included all those involved (both council or company executives, the people involved directly in the carrying out of cultural heritage destruction and members of the Traditional Owner groups) all attended a long, carefully prepared interactive facilitated conference.
The restorative justice process was a watershed for participants in both cases. Traditional Owners received a deep and genuine apology by those involved in the destruction of cultural heritage including the requirement of initiatives to help heal the harm and prevent a future occurrence. It also enabled the perpetrators to gain new insights into the impact of their actions. The final court orders, in both instances included requirements to undertake organisational cultural heritage training and system improvements to prevent a recurrence in the future, along with other penalties.
Other important new restorative measures help ensure a court is able to understand the full impacts of a contravention or offence. The option for a court to receive and hear an impact statement about the ways, extent and effects of a offence or contravention is a signifigent new avenue for restorative outcomes. The impact statement can be provided directly by those impacted, or by a representative organisation. The court is able to take account of the ‘impacts’ when determining its orders and adjudication of the contravention. This creates the opportunity for orders to be made around preventative actions (education, training, system changes) and also restoration. The option of a restorative project order can (and has formerly been the case under the EP Act 1970) enable the monetary penalty to be paid to a restorative project (or to the Restorative Account managed by the EPA). Past examples of such orders include payment of funds to Traditional Owners, community and environmental organisations for the restoration of impacted environments. Information about the process for accessing funds from a court-ordered restorative justice project is available from the EPA (see www.epa.vic.gov.au).
Enforcement by other agencies
Some parts of the EP Act may be enforced jointly with other agencies, while others are enforced exclusively by those other agencies.
The EPA may delegate its powers to councils, including the power to appoint Authorised Officers and issue remedial notices. So far, the EPA has identified a role for councils to assess compliance against the GED and issue improvement and prohibition notices in relation to onsite waste-water treatment systems (a.k.a. septic tanks) and noise issues arising from residential construction activities. Councils also remain responsible for approving (reg 32 EP Regulations 2021) the construction, installation or alteration of an onsite wastewater management systems (a.k.a. septic system) and now have a range of powers to administer this scheme, including issuing fines for non-compliance (regs 159–163).
Councils continue to have power under the EP Act to issue fines and prosecute acts of littering (s 115 EP Act). The new EP Act expands these powers to enable councils to tackle illegal dumping with greatly increased fines and penalties for dumping of larger volumes of waste. Councils also retain powers to issue directions and abatement notices to address waste and powers to seeing information about dumped waste (Part 6.3).
Councils continue to be responsible for residential noise complaints (jointly with Victoria Police) and to issue unreasonable noise directions (s 175 EP Act). Councils also retain power to issue residential noise improvement notices (s 172). Victoria Police remains exclusively responsible for responding to unreasonable noise from entertainment venues (s 169). Councils and Victoria Police can a seek injunctions relating to residential noise (s 174).
If planning permit conditions require compliance with EP Act permissions, it is possible to seek an enforcement order in VCAT if the condition is breached (see ‘Enforcement’ in ‘VCAT and environmental law‘).
Where a 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).
Enforcement and resolution by individuals
The EP Act creates pathways that enable members of the community to hold others to account for the obligations under the EP Act. Consistent with the old Act, any person who claims to be directly affected by unreasonable noise from residential premises (s 167 EP Act) can take criminal proceedings against an alleged offender (s 170(2)) EP Act).
More significantly, the EP Act creates a civil remedy pathway to enable a person to obtain an order from the court (including the Magistrates’ Court) requiring a person to comply with an obligation they havee under the EP Act (Part 11.4 EP Act). If the court is satisfied that a person is not complying or has not complied with a permission or is in breach of another obligation (e.g. the GED), the court can order that duty holder to take action the court considers reasonably necessary to address the non-compliance or seek a financial assurance from that person as a condition of engaging in the conduct. The court can also order compensation be paid to anyone who has suffered or may suffer injury, loss or damage as a result of the contravention, including to cover the costs the affected person incurred in taking acting against the contravention.
The new civil remedies are available to whose interests are affected by the contravention or non-compliance or any other person who has the leave to the court to apply (e.g. a community group). In considering whether or not to grant such leave, the court must be satisfied that the application would be in the public interest, the person has written to the EPA requesting enforcement action and the EPA has not taken such action within a reasonable time.
Similarly, if a local council does not act within a reasonable time following a request to take action under the Public Health and Wellbeing Act 2008 (Vic), a member of the public can apply to the court (see Chapter 6.4: Neighbour disputes, for more information about remedies under this Act).
Even if polluters are acting within approvals or licences granted under the EPAct, they might still be liable to civil action under common law principles (see Chapter 10.1: Negligence and injury).
Complaints about pollution and waste can be made to the EPA’s 24-hour pollution watch line (1300 372 842). Reports can also be made online via EPA’s website.
The EPA has also provided a form by which a written request to take compliance of enforcement action may be made for the purposes of third-party civil remedies (which is available on the EPA’s website).
Complaints about noise and other discharges of material 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 Victorian Government Department of Health, as well as the EPA. For more information about residential noise complaints, see Chapter 6.4: Neighbour disputes.
The EPA may visit the premises against which a complaint has been made. If there is a persistent problem, the EPA can do a number of things, including seeking voluntary compliance, issue directions to those at the premises or issue remedial notices (Chapter 10 EP Act) to compel action. If those notices are subject to independent review (e.g. at VCAT) then 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 and planning
If a development licence specifies an activity that requires a planning permit or an amendment to a planning scheme under the PE Act, then the development licence does not take effect until a copy of the planning permit or amendment is provided to the EPA (s 71 EP Act).
The EPA’s decisions are also linked to the planning system through the referral authority 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 responsible authority) to grant a planning permit, if a proposed development requires an EPA development and/or operating licence. The EPA has published guidance on its role in advising responsible authorities, such as the EPA’s expectations on those wishing to build within the ‘buffer zone’ of a landfill.
A major project might require an amendment to the planning scheme, an EES and a development licence. In such cases, the development licence application is usually considered at the same time as the EES. Where a development licence is advertised jointly with an EES, any submission by a member of the public must be made with submissions on the EES (s 52(20(e)). Where a development licence is issued substantially in accordance with the EES, the development licence is not subject to third-party appeals to VCAT (s 431(3)).
In October 2018, Ministerial Direction 19 (MD19) came into effect under section 12(1)(f) of the PE Act. MD19 requires planning authorities to seek early advice from the EPA when undertaking strategic planning processes and preparing planning scheme amendments that may significantly impact the environment (including amenity) and/or human health. The explanatory report for an amendment must include a statement of how the proposed amendment addresses EPA’s views.
In March 2021, DELWP published Planning Practice Note 92 that addresses development of land that is used for industrial purposes and other land uses have the potential to produce offsite impacts, such as noise, dust, odour and hazardous air pollutants. Under the VPPs, a person may seek to have a ‘buffer area overlay’ adopted for their area as a means of limiting development of land for sensitive uses within the impact footprint of their site to help minimises harm from matters they cannot otherwise fully manage on their site (e.g. noise, odour). The aim of this overlay is to prevent encroachment of sensitive uses into areas needed to support viable industrial activity and critical infrastructure, such as waste management activities.
In October 2018, Ministerial Direction 19 (MD19) came into effect under section 12(1)(f) of the PE Act. Land that is to be rezoned to certain sensitive uses (e.g. from industrial to residential use or to accommodate a school) or if an Environment Audit Overlay is in place for the land, the duty holder must meet additional requirements to address potential contamination. Under Ministerial Direction 1 (MD1), the responsible authority must decide whether the land is ‘potentially contaminated land’, withing the meaning of the VPPs. To help make this determination, the responsible authority may require a preliminary risk screen assessment (PRSA) or an environmental audit by an environmental auditor be conducted under Part 8.3 of the EP Act before authorising the zone change or issuing a permit.
If the PRSA indicates it is likely to be contaminated land, an environmental audit must be conducted. The responsible authority may approve a zone change that is conditional on the audit being completed, or require the audit be completed before authorising the zone change. The EPA must be notified of both PRSAs and environmental audits and may review and seek changes to the scope of any proposed audit. The EPA retains direct powers to seek remediation of contaminated land, whether or not a responsible authority is involved. For more information refer to Planning Practice Note 30 (see DELWP’s planning information at www.planning.vic.gov.au/policy-and-strategy/planning-for-environment-protection/contaminated-land-and-planning).
A person selling land that may be contaminated is now under an obligation to provide relevant information on the contamination that they are aware of and must notify the purchaser if an environmental audit statement has been issued under the EP Act, or the old EP Act.
DELWP has established a map-based tool that lists all information on public registers held by government regarding contaminated land. The register can be accessed for free at www.environment.vic.gov.au/sustainability/victoria-unearthed. Land can be searched by street address and information past land use and investigations related to the site can be examined. This register is not considered exhaustive of all contamination information. Before purchasing or occupying land suspected to be contaminated it is recommended you seek information on its contamination status from the persons or persons currently in management of control of that land.
A proposal likely to have significant impact on a matter of national environmental significance must be assessed under the Commonwealth environmental impact assessment system established by the EPBC Act, which is currently under review.
The EPA provides a significant amount of information on its website, including information required to be made available on the public register. Other information relating to decision-making by the EPA (e.g. the issue of remedial notices and licences) may be sought under the Freedom of Information Act 1982 (Vic). However, commercially sensitive information is subject to certain protections under the EP Act (s 453) and may only be disclosed with the consent of the person to whom the information applies.
For details of freedom of information exemptions, see Chapter 12.3: Freedom of information law.