The Environment Protection Amendment Bill 2018 received royal assent yesterday, 28 August 2018. Section 2 of the Act sets out its commencement and it relevantly provides that ‘if a provision of this Act does not come into operation before 1 December 2020, it comes into operation on that day.’ The Department of Environment, Land, Water and Planning (DELWP) has said that the Victorian Government intends that the new legislation will take effect from 1 July 2020. The Environment Protection Act 1970 (1970 Act) will be repealed. The Environment Protection Amendment Act 2018 (Amending Act) will substantively amend the Environment Protection Act 2017. The 2017 Act will become the principal environmental legislation in Victoria.
The amendments will establish a new General Environmental Duty to notify the Environment Protection Authority (EPA) of pollution incidents and a duty to notify of contaminated land. Contamination is notifiable if the cost of contamination remediation is likely to exceed $50,000. The threshold can be increased by regulation above this amount, which we understand is likely to occur. A breach of the General Environmental Duty could lead to civil or criminal penalties. According to DELWP, the new requirements are modelled upon Victoria’s Occupational Health and Safety Laws.
The various licences and other forms of statutory authorisation that previously existed under the 1970 Act have been consolidated around the concept of Permissions. The Permissions that now comprise the existing forms of statutory authorisation are Development Licenses, Operating Licences, Pilot Project Licences, Permits and Registrations. Relevantly, Operating Licences replace the Licences previously issued under section 20 of the 1970 Act and Development Licenses replace Works Approvals previously issued under section 19B of the 1970 Act. Transitional provisions seek to ensure that the old forms of authorisation continue as the new Permissions.
The amendments introduce voluntary Better Environment Plans which are essentially voluntary plans that we expect will be used in an industrial area where several industries work together to address an environmental issue.
The amendments also introduce a new form of environmental assessment, being the Preliminary Risk Screen Assessment, which is a voluntary assessment and supplements the environmental audit process that is continued under the new regime.
The EPA will have greater powers with respect to complex corporate structures and company directors, essentially enabling the EPA to ‘pierce the corporate veil’ so that directors can be liable for the offences of their corporations, and in the case of complex corporate structures the EPA can redirect liability to other related entities.
Clean up and cost recovery powers will be boosted. The EPA will continue to have power to sue to recover its clean up costs. However the new reforms appear to further extend the scope of the EPA’s powers to require cost recovery from previous owners and occupiers.
An important change relates to civil remedies and third party enforcement of those remedies. The Amending Act allows an interested person to seek a court order restraining a person from engaging in conduct that is not in compliance with the Act or relevant permissions. Such remedies are sought through the courts and not the Victorian Civil and Administrative Tribunal (VCAT). Where such an application is made the courts also have the power to make compensation orders. Accordingly the civil remedy provisions could be used by a private person to make a compensation claim, whereas before the introduction of that statutory cause of action third parties were generally restricted to the law of nuisance and negligence.
The Amending Act also provides for VCAT merits review of decisions. Of interest is that third parties may seek review of the merits of a reviewable decision. Previously third party review of Works Approvals was quite limited. It will be interesting to observe the body of jurisprudence that develops around third party reviews of the new forms of permission and what grounds can be legitimately advanced by those third parties. DELWP publications on the new provisions describe them as a new ‘community right’ to ensure the EPA is held to account in the way it enforces the laws.