20 changes to the EPA you need to know about

In 1971, the Victorian EPA was established under the Environment Protection Act 1970 (Vic) (EP Act).  It was the second EPA to be established in the world.  On 2 December 1970, the first EPA was established in the USA.

Now 47 years after the inception of the EPA, the Environment Protection Act (Amendment) Act 2018 (Vic) was passed by the upper house on 9 August 2018 and lower house on 23 August 2018.  This Act follows the report of the Independent Inquiry into the EPA in March 2016 and the State Government’s response to that report in January 2017.  There are a large number of changes to the EPA and its powers that you and your clients need to know about if you practice in the area:

  1. Risk-based regulation: The Act represents a highly significant shift to a ‘risk based’ approach to regulation rather than simply managing the impacts of pollution on segments of the environment through the grant of works approvals and conditions on licences.
  2. Public health: While the purposes of the Act are almost identical to the purposes of the EP Act, there is a shift towards human health.  For example, the new principle of conservation requires biological diversity and ecological integrity to be protected for purposes that include the protection of human health.
  3. Governing body: The first phase of reform has already been implemented by passage of the new Environment Protection Act 2017 . Since 1 July 2018, the EPA has a new Governing Board.  The statutory role of Chief Environmental Scientist was also created.
  4. Mandatory reporting: The Act creates a new duty to notify pollution incidents as soon as reasonably practicable and a duty to take action to respond to harm caused by a pollution incident and to notify certain contamination.
  5. Corporate veil: The Act provides power for the EPA to direct a notice to a related or ‘associated’ entity over which the body corporate had control if the entity is being wound up or it has failed to comply with a notice from the EPA.  Exercise of that power is subject to a test that requires knowledge, a position of influence and a failure to exercise due diligence by the associated entity.
  6. Clean up powers: The EPA may take action in response to immediate or serious risk of harm to human health or the environment including conducting a clean up.  The EPA may make a claim on a financial assurance to cover the costs of the clean up.
  7. Cost recovery powers: The EPA may recover its reasonable costs in relation to issuing notices including improvement notices, prohibition notices, environmental action notices or site management orders.  The costs are recoverable against a person who the EPA reasonably believes caused the circumstances.  Reasonable  costs include legal costs.  Unrecovered costs may become a charge on the land and the EPA may lodge a notice of that charge with the titles office which is required to be noted in the Register.
  8. Third party rights: Third parties whose interests are affected by a contravention or non-compliance or who have been granted leave of a court may take action if the EPA has not taken enforcement or compliance action.  A court may make an order restraining a person from engaging in specified conduct or requiring specific action to be undertaken if the court considers appropriate.  Interim orders may also be made.
  9. Compensation for third parties: A court may make a compensation order requiring a person to pay compensation for injury, loss or damage and costs incurred by the interested third party.
  10. General environmental duty: A breach of the general environmental duty may incur a penalty up to 10,000 penalty units (currently $1,611,900) for a body corporate or 2000 penalty units (currently $322,380) for a natural person.  The general environmental duty requires a person engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste to minimize those risks so far as reasonably practicable.  A breach of the general environmental duty in the course of conducting a business or undertaking is an indictable offence.  Multiple or aggravated breaches of this duty attract higher penalties – currently up to $3,223,800 for a body corporate.
  11. Development licence: Works approvals are replaced with ‘development licences’ for ‘development activities’.  A requirement to hold a development licence is triggered for construction or installation of plant or equipment or development of processes or systems for a prescribed development activity.  Certain modifications to plant, equipment, processes or systems which may create a risk of material harm to human health or the environment from pollution or waste may also trigger a requirement to hold a development licence.  This reform is coupled with a new definition of environment.
  12. Definition of environment: The old concept of ‘segments of the environment’ is replaced with a very broad definition that includes climate, water, land, atmosphere, sound, odour, taste, plants and animals and social aesthetics.
  13. Operating Licences, Permits and Registrations: The Act requires an operating licence for a prescribed operating activity and a permit for a prescribed permit activity.  A new concept of a pilot project licence is also introduced.  A registration activity triggers a requirement for authorization.  Refusal triggers a right of appeal to VCAT.
  14. Licence reviews: Operating licences must be reviewed after 4 years.  Conditions of the licence may then be varied by EPA or the licence revoked.
  15. SEPPs: SEPPs are replaced with environment reference standards which identify environmental values.
  16. Waste: The regulation of waste emissions requires detailed review by operators and industry because it represents a transformative change to waste regulation in Victoria.
  17. Audits: A new tool called a preliminary risk screen is introduced to define the scope of environmental audits.  Environmental auditors have new duties to notify the EPA in relation to imminent danger or an imminent state of danger to human health or the environment .
  18. Planning permits: The Act requires a development licence applicant to provide a copy of a planning permit or the planning scheme amendment to the EPA as part of the development licence application.  In that sense, planning permits are intended to precede the grant of EPA licences.
  19. Public Register: A new Public Register is created.  This is intended to contain details of enforceable undertakings, licences, permits or registrations that have been issued by EPA and conditions that attach in addition to the term.  The register is to be made available for inspection by the public.  Exemptions for persons or classes or persons may be applied for.
  20. VCAT Review: Rights of review to VCAT lie from decisions by the EPA to issue a notice such as an improvement notice; a prohibition notice; a notice to investigate; an environmental action notice or an abatement notice.  Further, a large list of decisions by the EPA under the Act are reviewable to VCAT including on applications for permits or authorisations, requirements to provide environmental assurances.  An application for review of a reviewable decision must be made within 15 days.  Limited grounds of review apply to certain decisions.

The reforms are proposed to have full effect by 1 December 2020, with staggered commencement dates to be proclaimed.

(c) Eliza M Bergin 2018

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Does the tribunal have jurisdiction? Implications of a recent High Court decision regarding residents of different States.

What does it mean for me?

If you are considering filing an application in a Tribunal such as the Victorian Civil or Administrative Tribunal (VCAT) or the South Australian Civil and Administrative Tribunal (SACAT) against an interstate resident, or if you are a not a resident of the State in which you wish to bring a proceeding, you should seek advice regarding the implications of the recent High Court decision in Burns v Corbett.[1]

An issue arises as to whether the tribunal is exercising judicial power over a matter in making a decision on your proceeding.

What is the issue?

In April, the High Court decided that the New South Wales Civil and Administrative Tribunal (NCAT) did not have jurisdiction to decide a proceeding between a resident of New South Wales, a resident of Queensland and a resident of Victoria.

The High Court decision related to two complaints of anti-discriminatory statements made against Mr Burns, a resident of NSW, by Ms Corbett, a resident of Victoria and by Mr Gaynor, a resident of Queensland.  The High Court considered that as NCAT was not a Chapter III court, and not a State court invested with Federal jurisdiction, it did not have jurisdiction.

Whether or not a tribunal has jurisdiction will turn on findings of fact as to where the parties are resident.

The principle is limited to natural persons.  However, it must be applied outside the anti-discrimination context including to planning and environment matters before the VCAT.  It is common for planning and environment proceedings in the VCAT to include natural persons as parties (such as owners of land seeking a permit for development or objectors to developments).  Advisors and clients should be aware that it cannot be assumed that the VCAT will have jurisdiction over a matter where there are non-Victorian residents as parties.

How has the High Court’s decision been applied?

In South Australia, Raschke v Firinauskas[2] involved an application for vacant possession by the landlord who was an interstate resident.  The Tribunal considered that it did not have jurisdiction to decide a dispute between landlords and tenants where one party is an interstate resident.

In construing the exercise of jurisdiction as judicial rather than administrative, SACAT considered ‘the nature of the task of the Tribunal is to supervise the compliance of the parties with the terms of their agreement and make orders that largely mimic the remedies that flow from the enforcement of the agreement as if it were the subject of a contractual dispute in a court’.[3]

Accordingly, the new Attorney-General has introduced a bill to amend the jurisdiction of SACAT by Statutes Amendment (SACAT Federal Diversity Jurisdiction) Bill 2018 (SA).  This provides for matters where SACAT does not have jurisdiction to be referred to the  Magistrates Court.

Both SACAT[4] and VCAT[5] have made statements regarding the limits of what they can and cannot decide.  They are able to decide:

  • applications in which one party is resident overseas;
  • applications in which a landlord is resident in a territory.

Of significance:

  • only natural persons may be residents – that is, corporations cannot be residents;
  • a person’s state of residence is determined at the date a proceeding commences, not at the date of the conduct that led to the dispute or claim.

In Victoria, it should be expected that when VCAT is exercising original jurisdiction, this issue may be raised if a non-Victorian resident is a party.  On the other hand, it is arguable that when VCAT is exercising review jurisdiction conferred by or under an enabling enactment, then the issue may not arise.  This is because an exercise of original jurisdiction may be considered to be a ‘matter’ and an exercise of judicial power.  When VCAT exercises original jurisdiction it ‘discharges a function that resembles the exercise of judicial power by a court’ and it must do so ‘subject to any statutory constrains that are imposed on it’.[6]

Examples of original jurisdiction relevant to planning and environment practitioners and clients include:

  • Requests to amend or cancel a planning permit under s 87 of the Planning & Environment Act 1987 (Vic);
  • Applications for an enforcement order under s 114.[7]

If one of the parties to such a proceeding is resident of a state other than Victoria, then the adjudication of the matter may involve an exercise of Federal judicial power.  VCAT can exercise State judicial power[8] but not Federal judicial power.

Decisions involving the grant or refusal of a planning permit appear more likely to be an administrative decision.

What are the next steps?

At the time of publication, VCAT and SACAT have issued statements on the potential implications of the High Court decision.  It would be prudent to seek legal advice on this issue if you have any doubts about the implications for you or your clients.

[1] [2018] HCA 15

[2] [2018] SACAT 19

[3] At [27]

[4] SACAT, ‘Frequently asked questions about the impact of the decisions in Burns v Corbett and Raschke v Firinauskas´15 June 2018

[5] VCAT, ‘Resolving disputes between residents of different Australian states’ 13 June 2018

[6] Director of Housing v Sudi (2011) 33 VR 559; [2011] VSC 266 at [208] per Weinberg J quoted in E Nekvapil (2017) Pizer’s Annotated VCAT Act p  116

[7] Yarra Ranges Shire Council v Australian Native Landscapes Pty Ltd [2009] VCAT 1025 at [199]

[8] Simpson v Andrew Maynard Architects Pty Ltd  [2014] VSC 365 at [37] – [38]

(c) Eliza M Bergin 2018

Have you read the forecast? Changes ahead in the Land, Planning and Environment scene

There are changes afoot in the Land, Planning and Environment scene, including amendments to both the Act and the Regulations and a new levy for metropolitan developments valued over $1 million.

Changes to the Planning and Environment Act 1987 

 

A new bill has been introduced into Parliament that will permit VCAT and responsible authorities to consider the number of objectors to a permit application when deciding whether a proposed use or development may have a significant social effect.

Decision-makers must already consider whether a use or development may have a significant social effect, however the number of objectors to a permit application was previously not specifically identified as a relevant consideration.  The proposed amendments clarify that the two key decision-makers in the planning permit process, the responsible authority or VCAT on review, may take the number of objectors into consideration before a decision is made, if the circumstances require.

The Minister for Planning, Richard Wynne, stated that the new requirement ‘is likely to be particularly relevant in circumstances where a proposal may reduce access to or enjoyment of community facilities or services or adversely affect public health and safety.’  He stated that the number of objectors and the consistency of their views may demonstrate a section of the scale of a social effect on the community.

As is the case now, an objector will need to put their concerns in writing and state how they would be affected by the grant of a permit.

The Minister  also clarified that “social effects” may include matters such as the demand for use of community facilities and services, access to social and community facilities, choice in housing, shopping and recreational leisure services, community safety and amenity and the needs of particular groups in the community.

Metropolitan Planning Levy

A new levy on planning permit applications for projects valued at over $1 million within Melbourne metropolitan areas takes effect from 1 July 2015.  Relevantly no exemptions apply for State Government Agencies.

The levy will be payable to a relevant responsible authority or planning authority and will be administered by the State Revenue Office (SRO).  Applicants must first apply for a Metropolitan Planning Levy (MPL) Certificate from the SRO and pay the MPL before making a planning permit application.  The rate for the MPL has been set in essence, at $1.30 per $1000 for affected projects.

The levy is payable where the estimated cost of  the development exceeds the threshold amount, which is currently $1 million for the 2015-2016 financial year.  Moving forward, this threshold amount will be indexed by the Consumer Price Index (CPI). The SRO is to publish the CPI adjusted threshold amount annually.

New Planning and Environment Regulations

Rounding up a sweep of recent changes and drawing seven months of public consultation to a close, new Planning and Environment Regulations 2015 came into operation on 16 May 2015.

Of relevance to State agencies that own, develop or manage land, three new forms have been inserted for giving notice of a proposal and decision to amend or end a section 173 Agreement.  As such, all users of Victoria’s planning system will need to update their systems and review the new forms.

First posted on the VGSO Blog.