Environment Protection Authority Victoria
The EPA is the principal environment project agency in Victoria. The EPA is responsible for administering the EP Act. The EPA regulates all activities relating to the discharge of waste, including emissions into air and water, noise, contaminated sites, municipal waste, and the generation, handling, treatment and disposal of industrial waste.
The EPA’s decisions to approve licences and work must be based on state environment protection policies and a consideration of the environmental benefits of particular licence conditions.
The Principles of Environment Protection, introduced in an amendment to the EP Act, must be considered in the EPA’s decision-making. These encompass the concerns of ecologically sustainable development (s 1A–1L).
In 2015, the Victorian Government commissioned a review of environment protection in Victoria. The findings of the review, delivered in 2016, recommended extensive changes to the functions and responsibilities of the EPA, including substantial legislative reforms.
The Victorian Government accepted the review’s recommendations, including improving pollution-monitoring systems and public access to monitoring data, improving civil enforcement rights, introducing higher penalties for breaching environmental law, and introducing a general duty not to pollute.
In 2017, the Victorian Parliament passed the Environment Protection Act 2017 (Vic) (“EP Act 2017”) that introduced a new objective for the EPA to “protect human health and the environment by reducing the harmful effects of pollution and waste”. This new objective marks an important point in the evolution of Victoria’s environment protection laws; human and environmental health must be at the fore of decisions made under the EP Act 2017.
In 2018, the Victorian Parliament passed the Environment Protection Amendment Bill 2018 (Vic) (“new EP Act”), which will come into force in mid-2020. The new EP Act will introduce substantive changes to the way pollution will be permitted, regulated and enforced in Victoria.
Under the new EP Act, a new General Environmental Duty (GED) will apply to all Victorians who engage in activities that may harm human health or the environment from pollution or waste to minimise the risk of harm as far as reasonably practicable. The GED is based on the general duty to minimise harm in occupational health and safety law. The GED is intended to drive improvement in practices to prevent harm to human health and to the environment.
Decisions by the EPA to approve licences and work must be based on state environment protection policies (SEPPs) and waste management policies (WMPs) (ss 16–19 EP Act). These policies set overall environmental standards and objectives.
There are SEPPs on many topics, including air quality, the water in Port Phillip Bay, industrial and entertainment noise, and the management of municipal tips. All SEPPs are available on the EPA’s website (www.epa.vic.gov.au).
SEPPs contain fixed and ambient standards that maintain and protect “beneficial uses” of the environment. For example, SEPPs for specific water catchment areas protect the beneficial use of the water for the purpose of drinking. Fixed standards prescribe maximum emissions from fixed points. Ambient standards establish minimum environmental quality standards, which allow emissions to change as the level of pollution in the environment increases or diminishes.
SEPPs are created on the EPA’s recommendation, after a period of public advertisement and consideration of submissions (ss 16–19 EP Act). The EPA must take into account financial, social and environmental considerations when recommending standards for SEPPs. Before coming into effect, the draft SEPPs and WMPs must be put before state parliament with a policy impact statement.
SEPPs form the basis for works approval and licensing decisions and are also the basis for regulatory requirements and permit conditions under other legislation, such as the PE Act and the Mineral Resources (Sustainable Development) Act 1990 (Vic).
Under the new EP Act, SEPPs will be abolished as legislative instruments. They will be replaced by a range of regulatory tools including environmental reference standards, regulations, obligations for managers of land and infrastructure, orders, compliance codes and guidance documents that, in substance, translate most of the content contained in the SEPPs into new legislative instruments.
The EP Act sets out specific pollution offences that cover pollution to water (pt V), air (pt VI), land (pt VII), littering (pt VIIA) and noise (pt VIII).
The EPA also uses licences and works approvals to control the discharge of emissions into air, land and water. Licences and works approvals are required for “scheduled premises”. Scheduled premises are set out in the Environment Protection (Scheduled Premises) Regulations 2017 (Vic).
Licences are required for emitting, discharging or depositing waste into the environment, disposing waste, treating waste, or handling ozone-depleting substances at certain types of premises (s 20 EP Act). Licences are also required to transport certain types of waste.
Works approvals are required for new developments that could produce a potentially harmful discharge into the environment or an increase or change in an existing discharge (s 19A). A works approval provides an overall framework for controlling discharges and the effects of an activity both offsite and onsite. Works approvals specify the type and volume of discharges for which licences may be issued for the premises.
The main idea behind the works approval procedure is for the EPA to become involved in the design of industrial processes as early as possible. Therefore, the works approval inquiry creates a good opportunity for suitable conditions to be applied to the project.
Applications for works approvals must be publicly advertised in a state-wide newspaper (ss 19B(3)(b), 20(8)(b)) and referred to local councils, the Victorian Government Department of Health and Human Services (DHHS) and other authorities.
Submissions are invited from the public and relevant agencies, and objections must be lodged within 21 days (s 19B(b)(iv)). The EPA will consider comments and submissions and may convene a conference to resolve differences between parties (s 19B(6)). The EPA must take into account any resolutions of this conference and any recommendations of the conference chairperson.
Generally, licence applications are not subject to public submissions, unless a company fails to apply for a works approval and commences building in circumstances where a works approval is required. If this occurs, the application or licence amendment goes through the same procedure as a works approval (s 20(8), 20A(6)).
A licence will generally be issued unless the works approval was not complied with, so breaches of the works approval are a point on which records should be kept, and complaints and submissions made.
Under the new EP Act, works approvals will be replaced by “development licences”. Also, the licensing regime will be replaced by a permissions regime that will, in addition to compliance with the GED, impose obligations depending on the degree of risk of harm to human health or to the environment posed by a specific activity.
The new EP Act will introduce new and substantial criminal and civil penalties for non-compliance with the Act. These include penalties for breach and aggravated breach of the GED, failure to notify the EPA of a pollution incident, and failure to comply with a permit. In addition to the EPA taking enforcement measures for breaches of the new EP Act, third-party enforcement rights will come into force in mid-2021. These third-party enforcement rights will allow an eligible person whose interests are affected, and who has leave of the court, to seek a remedy for a contravention of, or non-compliance with, the new EP Act. This is an important development as it allows community members to take legal action for contravention of, or non-compliance with, the new EP Act. Currently, other than third-party remedies available at common law (e.g. by way of judicial review), only the EPA can take enforcement measures for breaches of the EP Act.
The EPA’s grant of a works approval is conditional on planning approval being granted for the relevant activity, if the relevant planning scheme requires a permit (ss 19B(7A), 19B(7B) EP Act in relation to a works approval; s 20(8)(g), 20A(6)(g) in relation to licences).
The EPA’s decisions are also linked to the planning system through the 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 licence or works approval.
The development of “neighbourhood environment improvement plans” (NEIPs) must be done with municipal strategic statements and any relevant planning schemes in mind. Planning powers must be exercised with regard to a NEIP (s 19AI(3)(i), (l)).
A major project might require an amendment to the planning scheme, an EES and a works approval. In such cases, the works approval application is usually considered at the same time as the EES. Where a works approval is advertised jointly with an EES, any submission by a member of the public must be made with submissions on the EES. Where a works approval is issued substantially in accordance with the EES, the works approval is not subject to third-party appeals to VCAT (ss 19B(3B), 33B(1B)) (see “Appealing the EPA’s decisions”).
A proposal likely to have significant impact on a matter of national environmental significance must be assessed under the federal environmental impact assessment system established by the EPBC Act.
The EPA has the power to enter into sustainability covenants with industries that might significantly impact the environment (s 49AA–49AP). This could achieve more efficient use of resources and reduce the ecological impact of products and services, and the processes by which they are produced.
A review of an EPA decision about a works approval may be sought at VCAT within 21 days of the approval being granted (s 33, 33A, 33B EP Act). Appeals in relation to licences can also be made, but only where work has commenced without the necessary works approval. Appeals by objectors are called third-party appeals.
An objector who is “a person whose interests are affected” may ask VCAT to review an EPA decision to grant a works approval (s 33B(1)). The effects on a person’s interests need not be economic; and they may be direct or indirect (s 5 VCAT Act).
However, the grounds for review that third-party objectors may advance are limited. The objectors must show either that there will be a discharge of waste, or similar environmental risk, that will adversely and unreasonably affect them, or that a situation will be created that is inconsistent with a SEPP (s 33B(2)–(2c)). If there is no relevant SEPP, third-party objectors must show that the works approval conditions would result in pollution or an environmental hazard (with respect to licensing of industrial waste sites).
A statement of the grounds to be relied on at the VCAT hearing must be served on the applicant for a works approval and the responsible authority (cl 56, sch 1 VCAT Act). Here, “responsible authority” probably refers to the EPA. Although, the responsible authority is usually the local council or other authority responsible for issuing planning permits and implementing planning schemes under the PE Act. Until this ambiguity in the VCAT Act is cleared up, it is advisable to serve a copy on the relevant local council as well.
During the VCAT hearing, a party is not restricted to only using the grounds outlined in the statement of grounds given to the EPA and the local council (s 36E EP Act). However, failing to properly formulate a statement of grounds may result in a third-party objector paying substantial costs (see “Appealing a permit decision”). Therefore, it is important to formulate the grounds for review around the restrictions noted above. Obtaining legal advice is recommended. In making its decision, VCAT takes into account matters including (s 37A EP Act) the relevant planning scheme and SEPPs.
If a planning permit is also required, the appeal on both applications may be heard together. This means that broader planning issues can be considered.
Under the new EP Act, a third party will be able to apply to VCAT to review an EPA decision to grant a development licence or an EPA decision to remove the suspension of an operating licence. The third party’s interests must be affected by the EPA’s decision on specific grounds. These grounds include that the EPA’s decision unreasonably and adversely affects the person’s financial, physical or personal interests; or that a licence that permits an activity would, if conducted in accordance with the licence, lead to a contravention of the GED.
Where a site is suspected to be contaminated, the EPA can order the site to be assessed and, if necessary, remediated by the person who caused the contamination or by the occupier of the site. If they take no action within the time specified in the EPA’s order, the EPA can clean up the site and require the occupier to pay the cost. The EPA may also place a charge on the certificate of title of the land in order to recover its costs (s 62 EP Act).
If land is to be rezoned to a more sensitive use (e.g. from industrial to residential use), the EPA must be notified, and can require the site to be assessed for contamination.
A person selling land that may be contaminated is under no obligation to notify the purchaser, or to test the land for contamination, unless a statement of environmental audit has been issued (s 53ZE).
The EPA maintains a register of contaminated sites that includes sites that the EPA has tested for contamination. However, the register is known to be incomplete. The EPA also has a register of sites suspected of being contaminated because of previous activities, but these are not disclosed to the public because they have not been tested.
The EPA provides the following information:
• copies of regulations, SEPPs and WMPs and guidelines used as the basis for licensing;
• copies of licences and works approvals;
• any monitoring information required by licences or abatement notices;
• clean-up, pollution abatement, and penalty infringement notices;
• copies of EPA investigation files of licensees;
• scientific reports prepared as part of the process of developing SEPPs and guidelines, once the SEPPs or guidelines are finalised.
This is subject to exemptions under the Freedom of Information Act 1982 (Vic) and the EP Act, which requires licensees to give consent before the EPA can disclose information in relation to a manufacturing process or trade secrets (s 60 EP Act). See Freedom of information law, for details of freedom of information exemptions.
Under the new EP Act, the EPA is required to establish and maintain a public register that must contain certain information, including details of any enforceable undertakings, licences and permits that are in force. The register must also contain the final determinations of proceedings undertaken in a court or at VCAT under the EP Act to which the EPA was a party. The public register must also include compliance codes and guidelines that have been issued by the EPA.
Only people appointed by the EPA may prosecute offences against the EP Act (s 59). Similarly, the EP Act does not provide a right to enforce the legislation or the conditions of licences or works approvals.
Complaints about industrial pollution and noise, discharge of solids, liquids or gases detrimental to health or the environment, offensive smells and obnoxious or hazardous dumps should be made to the EPA’s 24-hour pollution watch line (1300 372 842), or by email (email@example.com), or in writing. Reports can also be made online via the EPA’s website at www.epa.vic.gov.au.
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 DHHS and may also be made to the EPA. For more information about noise complaints, see Neighbour disputes.
The new EP Act will impose a duty to notify the EPA of pollution and notifiable incidents. This duty will be imposed on people who are engaging in an activity that could give rise to a notifiable incident and where land could be contaminated. Failure to notify the EPA of a notifiable incident is a criminal offence.
The EPA usually visits the premises or the site of a complaint. If there is a persistent problem, then the EPA can do a number of things.
A minor works notice can be served, directing an owner or occupier of premises to correct the problem within a specified period if the problem is urgent and correction will cost less than $50 000 (s 31B EP Act). There is no appeal against a minor works notice.
A pollution abatement notice may be issued where a pollution problem, including noise, is less urgent and involves more substantial cost (s 31A).
Where waste being discharged into a sewerage system is causing a contravention of the sewerage authority’s licence or does not comply with standards prescribed by the EP Act, an abatement notice can be issued (s 28B). Various requirements might be imposed on the offender by the notice.
Appeals against such notices can be made to VCAT (ss 34, 35). Residents who have made complaints can assist the EPA by appearing as witnesses. Greater assistance can be provided if notes are made about an incident shortly after it occurs. People who are not appearing as witnesses but still wish to be heard should write to VCAT.
The EPA can direct a number of operators to take action to reduce the level of emissions where the problem is caused by the combined pollution of a number of premises, although no individual is exceeding the allowable level (s 31).
The EPA can also issue on-the-spot fines for infringements of the EP Act.
In more serious cases, the EPA can prosecute for discharges without a licence or in breach of the level permitted in the licence. There are also offences for failing to comply with a notice or direction from the EPA, the use of prohibited substances, or emitting offensive odours.
Charges of aggravated pollution may also be brought, with heavy fines and jail sentences, for deliberate contamination that places the public at risk (e.g. ss 59E, 67AA).
The new EP Act largely maintains the range of tools available for the EPA to take reinforcement or remedial action where contravention of the new EP Act has occurred and bestows civil remedies on certain people. Notably, all Victorians must comply with the GED and are potentially liable for incidents that breach the GED.
The public has no direct statutory rights to seek restraining orders, or abatement notices, or to prosecute for offences under the EP Act (s 59).
If planning permit conditions require compliance with EP Act licences, it is possible to seek an enforcement order in VCAT if the condition is breached (see “Enforcement”, under “Victorian Civil and Administrative Tribunal (VCAT)”).
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) (“PHW Act”). If the local council does not act within a reasonable time, a member of the public can apply to the court (see Neighbour disputes, for more information about remedies under the PHW Act).