Introducing the new Environment Protection Regime in Victoria: What’s different?
On 1 July 2021, the Environment Protection Act 2017 (new Act) came into force.
This new Act represents the biggest transformation of the environment protection regime in Victoria since the original Act came into force in the late 1970s. It followed the 2015 State-initiated independent inquiry into the role of the Environment Protection Authority (EPA).
Broadly speaking, duty holders (including land owners, managers and occupiers) are now required to take a preventative and proactive approach to the protection of human health and the environment from the impact of pollution and waste. The EPA is empowered to impose positive obligations on a duty holder to take reasonable steps to meet their obligations under the new Act, rather than the previous reactionary approach under the now repealed Environment Protection Act 1970.
Below is a snapshot of key changes that duty holders should be mindful of.
|Topic||Key relevant changes|
|Meaning of ‘contaminated land’||Section 35 of the new Act defines ‘contaminated land’ and notably, makes clear that land is not contaminated merely because waste, a chemical substance or a prescribed substance is present in a concentration above the background level in water that is on or above the surface of the land.|
|New Duties||Introduces 3 key duties to address contaminated land risks:|
|Environmental audit regime|
|New ‘Permissions’ Framework (previously ‘Approvals’)|
Introduces a new ‘Permissions’ framework comprising of three tiers of what is collectively referred to as ‘Permissions’:
|Statutory notices||Clean Up Notices and Pollution Abatement Notices are replaced by Improvement Notices, Prohibition Notices, Environmental Action Notices and Site Management Orders.|
New ‘Contaminated land’ duties: What are duty holders expected to do?
Duty to notify EPA
Section 40(1) of the new Act requires that a person in management or control of land notify the EPA of contamination. The circumstances in which that person must notify the EPA is prescribed by the Environment Protection Regulations 2021 (Regulations).
Section 40(3) goes on to specify that whether a person in management or control of land becomes aware of, or reasonably should have become aware of, notifiable contamination is determined having regard to:
- the person's skills, knowledge and experience
- whether the person could practicably seek advice regarding the contamination
- any other circumstances of the contamination.
Duty to manage
Section 39 of the new Act requires a person in management or control of land to minimise risks of harm to human health or the environment from the presence of contamination in land or groundwater.
This duty can be satisfied based on what is known about contamination at the site, including the potential for contamination to be present, and when it is reasonable to expect a person (in management or control of the site) to have that knowledge.
As knowledge on the potential for contamination increases, then the scope of a person’s duty also increases, whether to assess risks or to manage them.
General Environmental Duty (GED)
The GED imposes a positive obligation on entities conducting activities that pose risks of harm to human health or the environment from pollution or waste. This means duty holders will need to understand those risks and take reasonably practicable steps to minimise those risks.
What is ‘reasonably practicable’?
Essentially, the scope of the contaminated land duties relates to what a person in management or control of land knows, or reasonably should know, about the status of contamination on that land.
The EPA’s expectations on duty holders will change as the knowledge of contamination changes. Duty holders should have regard to Figure 1 in the EPA’s Contaminated Land Policy1 (extracted below) when seeking an indication as to what can be expected from the EPA’s response. This figure illustrates the relationship between knowledge of different states of contamination and the corresponding compliance response the EPA expects under the key duties:
Environmental audit regime
A PRSA is recommended for scenarios where it is uncertain whether an audit is warranted; specifically, those with lower potential for contamination or for sites where the proposal is relatively minor – i.e. involving modifications to an existing use as opposed to a change in use.
An audit will likely be recommended for sites in the ‘high’ contamination category, where a new sensitive use is established. Proceeding directly to audit is recommended, as there will usually be reasonable certainty an audit will be required, and this approach is likely to provide the most efficient outcome.
The new Environment Protection Regime encourages and requires industry to be more transparent for the purpose of increasing knowledge and clarity about contaminated land risks. This may be particularly important in situations where people are undertaking their environmental due diligence when buying and selling land. The new Act includes a more exhaustive list of information and documents which the EPA is required to include in its Public Register (accessible to the public). This includes copies of PRSAs, audits and statutory notices.
New point of law: What can be considered as a protected document?
A look at Environment Protection Authority v Sydney Water Corporation  NSWLEC 119.
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