Victoria's new environmental protection reforms and the national state of play: part four - Environmental Law

In a special four part series of Insights, Corrs' Environment and Planning team examines key elements of upcoming amendments to Victoria's Environment Protection Act 2017 (New EP Act).

This Insight is part four in the series and outlines the suite of statutory notices that the Environment Protection Authority Victoria (EPA) will be empowered to issue under the New EP Act from 1 July 2021.

New statutory notices available to the Victorian EPA

Compared with the old regime under the Environment Protection Act 1970 (Vic), the EPA will have power under the New EP Act to issue statutory notices in a broader range of circumstances, including in instances where harm to human health or the environment has not yet occurred.

The suite of new notices available to the EPA is outlined in the table at the end of this article.

Notable features of the new notices

Similar to the EPA's approach under the old regime, the EPA's Compliance and Enforcement Policy relating to the New EP Act confirms that the EPA's use of its enforcement tools - including the suite of new statutory notices - will be risk based and responsive to both the risk of harm and the culpability of the person involved.

There are, however, various points of difference with statutory notices under the old regime:

Increased review rights: With the exception of non-disturbance notices (which require swift action to be taken within seven days to secure a site or situation), merits review rights to VCAT will be available to the recipient of all of the new notices and orders. A site management order (SMO) may also be subject to an application to the EPA to vary or revoke. This is markedly different to the old regime where merits review rights have only been available for pollution abatement notices.

As there is no indication in the EPA's Compliance and Enforcement Policy that the EPA will advise or consult with recipients of proposed notices/orders before they are formally issued, the new review rights may be well needed and used.

Broader cost recovery rights: A person who is issued with an environment action notice (EAN) or an SMO has a statutory right to recover the reasonable costs incurred in complying with that notice/order from the person responsible for causing or contributing to contamination of the land. Similarly, an occupier who is directed to remove waste under a waste abatement notice may recover the costs incurred in doing so from the person who deposited the waste.

These complement other cost recovery rights elsewhere in the New EP Act, and enable cost recovery in a broader range of circumstances than the old regime. However, where cost recovery still depends on obtaining a court order (which is the case for an EAN and SMO), it will be interesting to see if the recovery rights are more readily used than under the old regime.

An SMO runs with the land: An SMO is a statutory charge under the Transfer of Land Act 1958 (Vic) and so effectively attaches to the land, and will be enforceable against subsequent owners, occupiers or persons in management or control of the land.
Increased penalties: Compared with the old regime, increased penalties will apply for non-compliance (without reasonable excuse) with any of the new notices/orders. Non-compliance is generally an indictable offence and subject to civil or criminal financial penalties of up to just over $90,000 for individuals and about $454,000 for corporations.
Broader powers to redirect corporate obligations: By reference to definitions under the Corporations Act 2001 (Cth), the EPA will be able to 'redirect' the requirements in an EAN or SMO to a body corporate who is a 'related entity' or 'associated entity', or an 'officer' of the body corporate in certain circumstances. For example, redirection may be possible where the entity issued with the EAN or SMO is being wound up or has failed to comply with the notice/order.

In order to redirect the requirements, the EPA will need to be satisfied that certain knowledge and influence requirements are met and due diligence was not exercised. When redirecting to officers, there is an additional requirement that the EPA must be satisfied that the redirection is not oppressive, unjust or unreasonable.

The redirection powers are significantly broader than those available under the old regime which only allows for a related body corporate to be directed to comply with a clean-up notice.

Summary of new statutory notices

Notice	Potential recipients	Potential requirements
Improvement Notice	A person who is or has contravened the New EP Act or not complied with a permission under the New EP Act; or A person who has engaged, or proposes to engage, in an activity that has, or is likely to, cause harm to human health or the environment from pollution or waste.	Take specified action(s) to remedy the contravention, or remedy the activity that has caused or is likely to cause harm. This may include clean-up measures.
Prohibition Notice		Prohibit a specified activity and require other things to be done as the EPA considers necessary.
Notice to Investigate	A person who caused or permitted 'relevant circumstances'; The current owner or occupier of land where 'relevant circumstances' exist; or The owner or occupier at the time the 'relevant circumstances' first arose. For a Notice to Investigate, the 'relevant circumstances' are where the EPA reasonably believes that: land is or may be contaminated; a pollution incident has occurred; industrial waste is at a place unlawfully; or there is a risk of harm to human health or the environment arising from pollution or the depositing, storage or handling of waste. For an EAN, the 'relevant circumstances' are where the EPA reasonably believes that: land is or may be contaminated; a pollution incident has occurred or is occurring that has or is likely to cause harm; industrial waste is at a place unlawfully; any other circumstances exist arising from pollution or waste that have caused or are likely to cause harm; or a person who was issued with a notice to investigate has failed to comply.	Investigate and report on the existence, nature and extent of the relevant circumstances within a specified time.
Environmental Action Notice		Take specified action(s) subject to any condition, requirement, restriction, performance standard or level that the EPA thinks fit, including: take clean-up measures; take waste to a lawful place; cease accepting industrial waste at a place unlawfully; reduce stockpiles of waste; remediate contaminated land; and/or do the things specified in a notice to investigate that have not been done.
Site Management Order	The current owner or occupier of a site; or The person presently in management or control of a site on Crown land, where the EPA reasonably believes that long-term management of the site is necessary because land is contaminated or there is harm or a risk of harm to human health or the environment from pollution or waste. NB: An SMO is binding on each subsequent owner, occupier or person with management or control of the land.	Certain measures must be undertaken within a specified time, such as: develop and implement a plan for managing environmental risks; install and use monitoring equipment; report to the EPA; maintain or increase management control measures; not use the site for specified purposes; or long-term or passive remediation actions.
Non-Disturbance Notice	A person who is, or appears to be, the current occupier of a place where the EPA reasonably believes it is necessary to issue the notice to facilitate the performance of functions or exercise of powers under the New EP Act in relation to a place, for example, to secure a site or a situation.	Within a specified time (up to seven days), the use or movement of, or interference with, any specified plant, equipment, substance or thing at the place must stop or be prevented.
Waste Abatement Notice	A person who deposited waste on premises that causes a risk of harm to human health or the environment or in such a way as to make the premises disorderly or detrimentally affect its proper use. A person who has engaged or proposes to engage in an activity that causes or is likely to cause the deposit of waste as described above. If such a person cannot be located, the EPA may issue written notice to the occupier of the premises directing them to remove the waste.	Take certain actions, such as remove the waste within a specified time or in a specified manner, restore of the premises affected by the waste, or modify the way in which the person engages in an activity.

What will the new notices mean for Victorians?

Victorians should be aware of their rights, obligations and potential liability exposure under the old and new statutory notice regimes.

Statutory notices issued under the old regime that are in force immediately before 1 July 2021 will continue in force until 1 July 2023 unless revoked earlier. Recipients of such notices must continue to comply with the terms of those notices until that time.
If and when a new notice or order is issued under the New EP Act, recipients will need to closely review the requirements and applicable timeframes and consider any opportunity to seek review (noting that in most cases this will be specified in the notice itself).
In a sale of land context, disclosure of SMOs as a statutory charge on land, as well as any other statutory notices, will need to be considered under the requirements of sections 32A and 32D of the Sale of Land Act 1962 (Vic).
Officers of body corporates should be mindful of the new level of risk exposure created by the EPA's power to redirect EAN and SMO requirements to them. Officers may also be more broadly liable under the New EP Act for offences committed by a body corporate. In all cases, this potential exposure reinforces the importance of due diligence as the 'best defence' to minimise the risk of liability.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.