The new environmental protection regulatory framework that is slated to commence in Victoria on 1 July 2021 is a risk-based, preventive framework. It is underpinned by a number of duties, including a new mandatory duty to notify the Environmental Protection Authority (EPA) of 'notifiable contamination'. This duty is designed to reduce the risk of harm to human health and the environment by ensuring the EPA is aware of higher-risk contamination that may warrant EPA's involvement. The duty will impact on landowners, occupiers and contractors in a number of unique and significant ways. We provide an overview of the new duty and outline how to prepare for its commencement.
What is the duty?
The duty to notify requires specified people to notify the EPA of land and groundwater contamination that exceeds set thresholds.
Am I required to notify the EPA?
The duty to notify applies to persons who are in 'management or control' of land that is contaminated above set thresholds. 'Management or control' is not defined in the Environment Protection Amendment Act 2018 (Vic) (Act), nor the supporting regulations. However, it relates to whether a person can exercise power over the land in a relevant way. In many cases this will be straightforward. For example, a person is likely to be in 'management or control' of land if they:
- own and occupy the land;
- have exclusive possession of the land under a lease; or
- are appointed as the Committee of Management in respect of the land.
In other cases, whether:
- a particular legal interest in land;
- specific reservations to the landlord;
- contractual rights granting occupation, access or other rights; or
- an ability to make decisions or exercise control in respect of the land,
are sufficient to place a person in 'management or control' of land will depend on the circumstances. Specific legal advice should be sought in these situations.
When do I need to comply?
The duty is intended to start from 1 July 2021. Unless an exemption applies, the EPA must be notified as soon as practicable after:
- 1 July 2021, if you are aware of contamination above the thresholds; and
- as soon as practicable after you become aware of, or reasonably should be aware of, contamination above the thresholds. This is because the duty is a continuing duty.
How should I prepare for the new duty?
Our explainer includes a step-by-step guide on how to prepare for the duty to notify.
It also provides answers to the following questions:
- What are the relevant thresholds for notification?
- What contamination am I 'aware' of?
- What contamination am I 'reasonably aware' of?
- Do any exemptions apply?
- How do I notify the EPA and what does the notice need to include?
- Will the notification be made public?
- What are the potential consequences of non-compliance?
- What will happen once I notify the EPA?
- Can I recover the costs of complying with the duty to notify?
What else do I need to do to prepare for the new framework?
The duty to notify is one of many changes to Victoria's environmental protection regulatory framework. The final version of the regulations have now been released, which means that now is the time to prepare your organisation for the commencement of the new framework on 1 July 2021.
Our roadmap on how to prepare provides a guide that you can tailor to your organisation, or use as a sense-check against your current plan.
For more information or advice on this matter, please reach out to a member of our Environment and Planning team.