Duty to notify contamination set to change

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Image:  EPA, West Footscray Fire

What is the issue?

At the present time, Victoria has the most limited duty to notify pollution or contamination.  That will soon change.

Currently, the obligation to report pollution or contamination is limited to environmental auditors engaged to undertake a statutory environmental audit where there is an imminent environmental hazard, and under some waste discharge licences issued under the Environment Protection Act 1970.

In addition, any annual report by directors submitted under the Corporations Act 2001 (Cth) must report on whether the entity’s operations have been subject to significant and particular state or Commonwealth environmental regulation and how the entity has performed.

From 1 December 2020, or sooner if proclaimed, Victoria will join other states in imposing a specific duty to report on ‘notifiable contamination’ to the EPA under the Environment Protection Act 2017 (new Act).  Notifiable contamination includes contamination for which the reasonable cost of action to remediate the land is likely to exceed $50,000.[1]

It would be prudent to obtain advice now on the duty to notify EPA of contamination before the new Act commences.  The new Act applies to land that is contaminated before or after commencement.[2]

What does it mean for me?

The new duty to notify contamination applies to a person in management or control of land.  EPA must be notified if the land has been contaminated by notifiable contamination as soon as practicable after the person becomes aware of the notifiable contamination, or reasonably should have become aware of the notifiable contamination.

The test of whether a person in management or control of land becomes aware, or reasonably should have become aware, of notifiable contamination is determined with reference to:

  • The person’s skills, knowledge and experience;
  • Whether the person could practicably seek advice regarding the contamination; and
  • Any other circumstances of the contamination.[3]

The duty applies to a person in management or control of land, including government land managers and corporate land managers.

The penalties are up to $19,342 for a natural person or $96,714 for a body corporate.  Significantly, the new Act purports to abrogate the privilege against self incrimination.[4]

What are the existing reporting duties?

Currently, all directors of companies (other than small companies limited by guarantee and small proprietary companies) required to submit an annual report under the Corporations Act 2001 (Cth) must give details of the company’s performance in relation to environmental regulation.[5]  This reporting obligation is triggered if the entity’s operations are subject to ‘any particular and significant environmental regulation’ under a law of the Commonwealth or of a State or Territory.[6]  The company’s performance must be detailed.

Accordingly, it would appear that any notification of significant contamination to the EPA under the new Act must also be reported on by directors in their annual report.

When does the new duty arise?

The circumstances in which a duty to notify a pollution incident arises was considered by the Land and Environment Court (NSW) [7] in a rare prosecution by the EPA for failure to notify a pollution incident.  The court considered that the duty to notify arose only when the defendant became aware that the clean-up operation would cost more than $10,000 with reference to the definition of material harm in the Protection of Environment Operations Act 1997 (NSW).  The defendant was found not guilty of the charge of failure to notify.  The court held that the respondent’s awareness of the bare fact that the pollution incident occurred did not trigger the duty to notify.

What are the next steps?

If you are concerned about a pollution incident, the discovery of contamination or legacy contamination it is prudent to obtain legal advice about your current and future reporting obligations and responsibilities.

Provision of false information is an offence under s 463 of the new Act, including concealing any materially relevant information or document.  This is an indictable offence which may also be heard and determined summarily.  The penalty is up to $80,595 for a natural person or up to $402,975 for a body corporate.[8]

[1] Section 37 Environment Protection Act 2017 (new Act)

[2] Section 38

[3] Section 40(3)

[4] Section 42

[5] Section 298 Corporations Act 2001 (Cth)

[6] Contravention of section 298 occurs when a director of the company, registered scheme or disclosing entity fails to take all reasonable steps to comply, or to secure compliance.  This is contravention of a civil penalty provision.

[7] Environment Protection Authority v Bulga Coal Management Pty Ltd (2014) 200 LGERA 235; [2014] NSWLEC 5.

[8] Calculated on the basis of the current penalty unit which may increase by the time the new Act commences.

© Eliza M Bergin 2019

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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

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

Review of land use classification in Victoria and South Australia

What is the issue?

Both Victoria and South Australia are undertaking unrelated but concurrent reviews of land use classification:

  • In Victoria, an Advisory Committee appointed under s 151 of the Planning and Environment Act 1987 (Vic) is considering improvements to land use terms and their definitions in Clause 74 of the VPP.
  • In South Australia, a review is being undertaken by the Department of Planning, Transport and Infrastructure into the definitions in the Development Act 1993 and Development Regulations 2008 as part of the process for development of the new Planning and Design Code.

What does it mean for me?

Both processes offer clients in each jurisdiction the opportunity to express their views about the approach to definitions of land use terms.  This can be an important consideration when preparing development proposals, being the difference between permit required, prohibited or permitted use (no permission required).

It has been suggested that the system in SA is tending towards the Victorian model of a uniform code which applies the same definition to land use classification across every municipality in the State.  In Victoria, users of the VPPs will be aware that clause 75 contains a series of nesting diagrams for particular land uses.  For example, the accommodation group spans land uses from camping and caravan park to host farms and retirement village (refer Figure One below).  The application of umbrella terms in the proposed Planning and Design Code under the new Planning Development and Infrastructure Act 2017 (SA) is one of the issues under consideration in SA. At the present time, SA does not apply the nesting diagram technique.

What are the next steps?

If these issues affect you or your clients you should consider making a submission to the relevant body.

  • In Victoria, the Advisory Committee is now seeking input on its discussion paper.

https://engage.vic.gov.au/land-use-terms-advisory-committee

  • In South Australia, you should write to the Engagement, Education and Communications Team, Planning and Development, Development Division, Department of Planning Transport and Infrastructure

DPTI.PlanningEngagement@sa.gov.au

Nesting Diagram for Accommodation Group

(c) Eliza M Bergin 2018

Plan Melbourne 2016

What are the issues of relevance to me?

The Victorian Government has released a discussion paper on the refresh of Plan Melbourne.

Plan Melbourne 2016 will be published in the first half of next year, and will build on Plan Melbourne 2014.  On 18 June 2014, we reported on the adoption of Plan Melbourne which was subsequently incorporated into the Victoria Planning Provisions.  The Ministerial Advisory Committee that advised on Plan Melbourne has been reappointed to advise on the refresh.

The discussion paper reflects the Government’s commitments and priorities and canvasses options for changes in planning policy and strategy.  It covers a range of key issues including housing and investment.  Of particular relevance to our clients is the discussion of improved environmental sustainability and planning for transport.

Environmental sustainability and climate change

The discussion paper emphasises sustainability as a key concept in the Plan Melbourne refresh.  Driving this part of the commentary are the CSIRO and Bureau of Meteorology[1] projections of increases in temperature and changing patterns of rainfall and more extreme weather events such as drought and bushfires, heatwaves, flooding and increased coastal inundation.

The discussion paper suggests that a ‘more sustainable polycentric city model’ is preferable to contain urban growth within a permanent urban growth boundary.  It is also suggested that Plan Melbourne 2016 might support the ‘greening’ of the city, by structuring planning, local policies and overlays to promote more vegetation cover and cool hard surfaces.  Clarification of the limits to the 20-minute neighbourhood is also expected in Plan Melbourne 2016.

Once finalised, Plan Melbourne 2016 will sit alongside other key components of current and existing legislation, policy and plans in Victoria on the topic of climate change and environmental sustainability, many of which are under review:

  • Climate Change Act 2010, under review by an Independent Panel;
  • Climate Change Adaptation Plan, for which consultation is planned in early 2016;
  • Victorian Energy Efficiency Target Act 2007, recently amended;
  • Renewable Energy Action Plan, currently being developed;
  • Energy Efficiency and Productivity Strategy, to be released later this year;
  • revised Draft Victorian Floodplain Management Strategy, released in June 2015 and expected to be finalised by the end of 2015;
  • State Water Plan, to be released in 2016.

Transport Planning

Plan Melbourne 2016 will reflect the Government’s transport priorities and commitments, including:

  • the Melbourne Metro Rail Project;
  • the removal of 50 metropolitan level crossings;
  • the Mernda Rail Extension; and
  • commitments to expand the bus network.

The discussion paper recognises that potential road initiatives such as connecting the Eastern Freeway and the Metropolitan Ring Road require further assessment.

Although Plan Melbourne 2014 committed to a second container port at Hastings, Plan Melbourne 2016 will leave open different options for the most appropriate site for a second container port, including locations at Bay West and Hastings.  Infrastructure Victoria will independently advise the government on this.

What are the next steps?

We will continue to update clients on this process.  Comments and submissions on the refresh of Plan Melbourne are invited until Friday 18 December 2015.  Please contact us if you would like assistance with preparing your submission.

[1] Bureau of Meteorology (2014) ‘State of the Climate 2014’.

First published on the VGSO Blog.