Protecting human health and the environment from pollution and waste

• Victoria’s environment protection framework

  Victoria’s EP Act establishes the primary legal framework for regulating pollution and waste. It aims to protect the community from harm and nuisance (e.g. annoying sounds, harmful emissions and unsightly waste) and to protect the natural and urban environment (that is, the places we live, work, play and obtain our food and other resources) from further degradation. The EP Act establishes a range of compliance duties and a permissions framework for certain activities and regulates Victoria’s waste scheme. It is supported by the Environment Protection Regulations 2021 (Vic) (‘EP Regulations’).

• General Environmental Duty

  To prevent environmental harm, the EP Act is designed on a positive and proactive ‘duties’ framework, with the general environmental duty (GED) (s 25) as the primary obligation.

  The GED creates a positive duty for all Victorians to eliminate or otherwise reduce, so far as reasonably practicable, risks to human health and the environment from pollution or waste before engaging in an activity and thereafter as knowledge of the risks emerges. This approach reflects the preventative approach adopted for regulating workplace safety (see also Chapter 11.7: Occupational health and safety), though caution should be exercised in drawing too close a comparison despite the significant similarities with safety legislation.

  Further, to fulfil the 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 the GED (EP Act s 25(4)). These components include requiring a duty holder to have systems to identify and respond to risks, to respond to harm if it occurs (e.g. pollution incident responses) and to provide training and supervise employees and others.

  To support those holding a GED under the new EP Act, the EPA has published materials to help duty holders understand the risks of harm that commonly arise in their activities and provided examples of how they can minimise those risks and fulfil their duty (see www.epa.vic.gov.au).

  When considering what is ‘reasonably practicable’ for a person to meet their duty, regard should be given to how serious the harm is, how 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 (EP Act s 6(2)), noting, however, that this section does not form part of the GED, but rather helps explain what should be considered in relation to the phrase ‘reasonably practicable’ (see Environment Protection Authority v Vista Estate Pty Ltd [2023] VSC 552 [48].

  Importantly, identifying the risks and the means of minimising those risks is not based solely on what a duty holder knows, but also on what is reasonable for a person in their position to know. This objective standard – referred to commonly 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 (EP Act s 6(1)). 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. 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.

  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:

  1. the duty to restore: the duty to take action to respond to harm caused by a pollution incident; and

  2. 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 (EP  Act s  31) 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 (see www.epa. vic.gov.au).

• The duty to report pollution

  The duty to report certain pollution incidents to the EPA (EP  Act s  32) 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:

  1. the duty to manage: the duty to minimise the risk of harm from contaminated land; and

  2. 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. They 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 (EP  Act s 39) 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 (SEPPs) 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 (see www.epa.vic.gov.au).

• The duty to report contaminated land

  The duty to report contaminated land to the EPA (EP  Act s  40) 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 EP  Act s  37) of the EP Regulations. 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.

• 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. Critically, the definition is not intended to describe types of substances, but rather the nature of relationships and values that surround such substances.

  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 (EP Act 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’ (EP  Act ss  115(1), (2)) and various scales of illegal dumping (EP Act ss  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’ (EP Act 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, 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 (EP Act ch 4), the collection of wastedisposal levies (EP  Act pt  6.6), and the establishment of Waste and Resource Recovery Groups (WRRGs) that are responsible for planning the waste and resource-recovery infrastructure (EP Act ch 13). A new government agency called Recycling Victoria has taken on the role previously played by the WRRGs.

• 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. These issues may also be addressed by councils under the nuisance provisions of the Public Health and Wellbeing Act 2008 (Vic) (other than noise from windfarms which are now regulated under the EP Act).

  Noise

  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 (EP Act pt 7.6) and the EP Regulations (pt 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 (EP  Act s 166), 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 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 Environment Protection Authority’, 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 to be unreasonable noise.

  Part  5.3 (Noise) of the EP  Regulations prescribes the noise levels (which, if exceeded, amount to unreasonable or aggravated noise) in relation to noise from residential premises (EP Regulations div 2 pt 5.3); commercial, industrial and trade premises (div  3); indoor and outdoor entertainment venues (div  4); and wind-energy facilities (div 5). The EP Regulations 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’ 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 Environment Protection  Act’, below). The EPA cannot enforce unreasonable noise requirements that arise between residential premises only. However, 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 windfarms and music venues (though note that the ‘agent of change’ principle as set out in the VPPs applies to music venues – see the notes to regulations 113 and 122 of the EP Regulations).

  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 Environment Protection Authority’, 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 under ‘permission decisions’.

  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. Smoke that is visible for more than 10 seconds that is emitted from motor vehicles is prohibited and can attract fines (EP Regulations reg 136).

  The manufacture and sale of solid fuel heaters is prohibited unless the heaters comply with the applicable Australian Standards (EP Regulations div 2 pt  5.2). 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 Environment Protection Authority

  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 (‘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  (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 (EP  Act pt  4.2). 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 (EP Act div 4, pt 4.4), those matters are set out in regulation 24 of the EP Regulations 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 or the interests of any other person.

  The EPA is required to maintain a public register on its website 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 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 (EP  Act s  52) 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 (EP Act 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 (EP  Act s  52(2)(d)). The EPA considers the comments and submissions received. It may convene a ‘conference of interest persons’ (EP  Act 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 (EP Act ss 69, 74, 81).

  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 (EP  Act s  434). 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 (VCAT Act cl  56, sch  1). 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 (EP Act s 435) including the relevant planning scheme and any relevant ERS.

  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 (EP Act s 54) 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 (EP Act 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 Environment Protection Authority or council

  Permission for constructing, installing or altering an onsite wastewater management system (e.g. septic systems) 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 to inspect and take enforcement action regarding the maintenance of such systems.

• Environment reference standard

  Replacing the previous SEPPs, the ERS (EP  Act pt  5.2) comprises many ‘reference standards’ for ambient air quality, ambient sound and land and water (surface water and groundwater) quality.

  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, the special significance of water to Traditional Owners, 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 ‘beneficial use’ concept established under the previous SEPPs. 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 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 if relevant to the planning decision under the PE  Act such as whether granting the permit would have a significant effect on 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: www.epa.vic.gov.au/aboutepa/laws/compliance-and-directions/environmentreference-standard.

• Compliance and enforcement under the Environment Protection Act

  Environment Protection Authority

  The EP  Act, for the most part, is administered by the EPA (a statutory authority, governed by an independent board) which has the overarching statutory objective of protecting human health and the environment from the harmful effects of pollution and waste (EP  Act s 357(1)). 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 EPA to take action to require compliance with the GED and other obligations, usually by issuing remedial notices or commencing legal proceedings to compel compliance or to restrain action that poses a risk of harm.

  EPA is expected to administer the EP Act with regard to 11 principles of environment protection (EP  Act ss 11–23) that encompass integration of environmental, social and economic considerations, intergenerational equity, responsibility for environment protection, and evidence-based decisions. 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 EP  Act provides multiple heads of power for EPA, and in certain circumstances other bodies (e.g. councils) and individuals to ensure accountability and compliance with obligations under the EP  Act, including undertaking investigations to gather information and evidence and to take enforcement action, such as the issuing of remedial notices and orders from the court to compel compliance or prevent non-compliance. The EP  Act also enables civil and criminal proceedings if EPA considers that actions, or the failure to take action constitutes a contravention, or offence under the EP Act.

  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).

  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 Environment Protection Authority’s options for taking regulatory action

  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.

• Remedial notices and site management orders

  EPA can issue a range of remedial notices, including improvement, prohibition and environmental action notices directing a person to comply with their duties (including the GED), as well as notices directing a person to take action to address a risk of harm or contamination (EP  Act ss  271–274) (e.g. to carry out works or stop a particular activity). EPA can also issue a ‘site management order’ to ensure the long-term management of contamination or other harmful circumstances at a site. A person who receives a remedial notice can usually have it reviewed by EPA’s internal review team and, if not satisfied with the result, VCAT (EP Act ss 429, 430).

• Civil remedies and restraining orders

  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 under the EP  Act (pt  11.4). 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), 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 EPA and include seeking an ex parte order (i.e. an order made in the absence of the person who is the subject of the order), if 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 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 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. 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 (EP Act pt 11.2). This includes 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, can include restorative measures and will frequently enable community participation. They can also enable  system and behaviour change for the duty holder and potentially extending to others in the same industry or area. If EPA accepts an enforceable undertaking it is required to publish the terms of the undertaking on the public register (EP Act s  456) and may re-institute proceedings if the person subject to the undertaking fails to comply with it.

  If 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 (EP  Act pt  11.6), including a monetary benefit order, an adverse publicity order, a general restoration and prevention order and a restorative project order.

  This range of penalty orders will help to ensure that, as an outcome of legal proceedings, 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 designed to enable participants to shape and inform the resolution of the matter, whether it is to achieve compliance, prevention of further contraventions 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 enforceable undertakings, court-ordered restorative justice projects, the hearing an impact statements or a restorative justice process in which court proceedings are adjourned to facilitate affected parties to agree on an outcome that recognises the harm caused to the community or the environment.

  The option of a restorative justice process is of particular significance, as it provides an avenue that can enable those impacted by a contravention or offence to participate directly in the enforcement proceedings.

  The option for a court to receive and hear an impact statement is another new provision which enables a court 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 an offence or contravention is a significant new avenue for restorative outcomes. Unlike victim impact statements under the Sentencing Act 1991 (Vic), an impact statement under the EP Act can be provided directly by those impacted or by a representative organisation. The court can take account of the impacts when determining its orders and adjudication of the contravention. This creates the opportunity for preventative actions (education, training, system changes) and restoration. The option of a restorative project order is not a new provision, but an important one that enables a 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 courtordered restorative justice project is available from the EPA website.

• Enforcement by other agencies

  Some parts of the EP  Act and EP  Regulations may be enforced jointly with other agencies, while others are enforced exclusively by those other agencies.

  EPA may delegate its powers to councils, including the power to appoint authorised officers and issue remedial notices. So far, 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 and noise issues arising from residential construction activities. Councils also remain responsible for approving (EP  Regulations reg  32) the construction, installation or alteration of an onsite wastewater management systems and now have a range of powers to administer this scheme, including issuing fines for non-compliance (EP Regulations reg 159–163).

  Councils continue to have power under the EP Act to issue fines and prosecute acts of littering (EP  Act s  115). The new EP  Act expands these powers to enable councils to tackle illegal dumping with greatly increased fines and penalties for the dumping of larger volumes of waste. Councils also retain powers to issue directions and abatement notices to address waste and powers to seeking information about dumped waste (EP Act pt 6.3).

  Councils continue to be responsible for residential noise complaints (jointly with Victoria Police) and to issue unreasonable noise directions (EP  Act s  175). Councils also retain power to issue residential noise improvement notices (EP Act s  172). Victoria Police remains exclusively responsible for responding to unreasonable noise from entertainment venues (EP Act s  169). Councils and Victoria Police can seek injunctions relating to residential noise (EP Act 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’, under ‘Victorian Civil and Administrative Tribunal review’, above).

  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 their obligations under the EP  Act. Consistent with the Environment Protection Act 1970 (Vic), any person who claims to be directly affected by unreasonable noise from residential premises (EP  Act s  167) can take criminal proceedings against an alleged offender (EP Act s 170(2)).

  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 owe under the EP Act (EP Act pt 11.4). 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 effectiveness of this new pathway was confirmed recently the case of Anderson v PWM (Lyndhurst) Pty Ltd [2024] VSC 417, in which the neighbour to a significant urban landfill was granted an order against the landfill operator to take steps to meet its GED in relation to landfill gas migrating onto the neighboring property.

  The civil remedies are available to those whose interests are affected by the contravention or noncompliance, and also by 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 it would be in the public interest, the person has written to EPA requesting enforcement action and EPA has not taken such action within a reasonable time. See: www.epa.vic.gov.au/ about-epa/laws/laws-to-protect-the-environmentand-human-health/your-third-party-civil-remedies.

  Similarly, if a 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 EP Act, they might still be liable to civil action under common law principles (see Chapter 10.1: Negligence and injury).

  Any person who witnesses another person littering or dumping waste from, or in association with, a vehicle, can lodge a litter and waste report via EPA’s website. An EPA infringement officer will review the report and may issue to the registered owner of the vehicle an infringement that ranges from several hundred dollars to thousands of dollars. A person who receives such a fine may seek an internal review of the decision to issue the fine.

• Making complaints

  Complaints about pollution and waste can be made to EPA’s 24-hour pollution watch line (1300  372  842). Reports can also be made online via EPA’s website.

  The EPA website also provides a form by which a written request to take compliance of enforcement action may be made for the purpose of third-party civil remedies.

  Complaints about noise and other discharges of material or gas that are offensive to the human senses, dangerous construction and ‘offensive industries’ (e.g.  abattoirs and piggeries) may be made to the local council or to the Department of Health, as well as EPA. For more information about residential noise complaints, see Chapter 6.4: Neighbour disputes.

  EPA may visit the premises against which a complaint has been made. If there is a persistent problem, EPA can do a number of things, including seeking voluntary compliance, issue directions to those at the premises or issue remedial notices (EP Act ch 10) 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 Environment Protection Authority 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 EPA (EP Act s 71).

  EPA’s decisions are also linked to the planning system through the referral authority mechanism. As a referral authority recognised in planning schemes, 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. EPA has published guidance on its role in advising responsible authorities, such as EPA’s expectations on those wishing to build within the ‘buffer zone’ of a landfill.

  Ministerial Direction 19 requires planning authorities to seek early advice from 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.

  Planning Practice Note  92 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 minimise 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.

  Ministerial Direction  1 requires a responsible authority to decide whether land is ‘potentially contaminated land’, within the meaning of the VPPs before considering a zone change or issuing a permit. The status can be confirmed through a Preliminary Risk Screen Assessment (PRSA) or an environmental audit. 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. 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.

  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 Environment Protection Act 1970 (Vic).

  DEECA 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 about 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 EIA system established by the EPBC Act.

• Information

  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 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 and may only be disclosed with the consent of the person to whom the information applies (EP  Act s  453). For details of freedom of information exemptions, see Chapter 12.3: Freedom of information law.

Protecting human health and the environment from pollution and waste

Chapter: 11.3: Environment and planning law

Contributor: Dr Dru Marsh, Senior Adjunct Lecturer, Public Service Research Group, School of Business, UNSW Canberra; Night Service contributor, Fitzroy Legal Service; Glenn Osboldstone, Senior Lawyer, DTP Legal; and Deborah Hollingworth, Manager, Aboriginal Strategy and Partnerships, Environment Protection Authority Victoria

Current as of: 1 September 2024

Law Handbook Page: 929

Next Section: Nature protection laws