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Victorian landowner obligations overhauled in new environmental legislation

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New Victorian legislation

Effective from 1 July 2021, businesses that operate in Victoria will be subject to tougher environmental standards under the state's new Environment Protection Amendment Act (2018) (EPAA), which is designed to prevent, rather than remediate, waste and pollution resulting from business practices.

The new legislation is set to fundamentally alter existing requirements in three key aspects:

Prevention

Reshaping the legislative framework with a preventative focus, a general environmental duty (GED) will be introduced. The broad duty will apply to businesses, industries and communities conducting any activity related to human or environmental health. Such bodies will be required to undertake reasonably practicable steps to prevent or reduce the risk of harm.

The definition of "reasonably practicable" is to be subjectively applied, giving consideration to:

  • likelihood of harm
  • the state of knowledge
  • suitability, and
  • cost of methods to eliminate or diminish harm.

Contrasting with other state legislation, the new Victorian position attracts both civil and criminal penalties for breach of the GED.

Contaminated land

The legislative amendments are aimed at better aligning the actions of the Environment Protection Authority Victoria (EPA) with the risks posed by contaminated land, making responses proportionate and cost effective.

In line with this objective, two duties have been developed:

  • Duty to manage contaminated land: This requires those in control of land to identify any contamination a person should reasonably know of and manage the contamination by minimising risks to human and environmental health, as far as reasonably practicable. This duty places a standard of reasonable knowledge upon landowners, requiring greater attention to due diligence and land management reports.
  • Duty to notify of contaminated land: This requires the EPA to be notified as soon as reasonably practicable if contamination poses a significant risk to human or environmental health. This level of contamination is known as "notifiable contamination". Specific criteria for notifiable contamination are set out in the legislation and include whether a person should have sought advice regarding the contamination.

Moving away from the "one-size-fits-all" audit process currently contained in the Environment Protection Act 1970, the new EPAA contains a two-stage audit process:

  1. Preliminary risk screen (PRS) assessment. Primarily used to determine the necessity of a more detailed screening, the PRS is conducted through a site inspection and minimal land sampling.
  2. Scaled audit. Used to determine the risks of harm to human and environmental health, the scaled audit may result in remedial action. Focussing on potential contamination or industrial activities, this more detailed audit process is still more cost effective than current methods.

Modernising the EPA

New enforcement legislation empowers EPA authorised officers to enter premises and investigate suspected breaches of the Act. Officers will also have access to search warrants and surveillance devices to broaden investigation capabilities. Significantly, breaching the GED may attract a penalty of up to $322,000 for an individual or $1.6 million for a corporation.

Intentional or reckless breaches resulting in "material harm" may attract a higher penalty of up to $644,000 and up to five years of imprisonment for an individual, or $3.2 million for a corporation.

The new focus on a "material harm offence" highlights the transition to a risk-based scheme, complemented by increases in penalties for illegal dumping of industrial waste and similar behaviour.

The EPA may serve a "notice to investigate" or an "environmental action notice" on:

  1. The polluter: the person or corporation reasonably believed to be responsible for the circumstances that are the subject of the notice;
  2. The current owner or occupier of the land: including both the owner and occupier is a significant expansion from the existing position that solely includes owners;
  3. Former owners: the person or corporation that occupied the land at the time the relevant circumstances first came into being.

Civil and criminal penalties may be enforced on any such entity.

In summary

The new Act will significantly alter the position on contamination management and reporting.

Re-shaping the framework with a preventative focus, three key duties are developed.

General Environmental Duty (GED)

The GED places an obligation on relevant stakeholders to undertake reasonably practicable steps to prevent or reduce the risk of harm to humans and the environment.

Duty to Manage Contaminated Land

Landowners are now required to be aware of contamination if the information is reasonably accessible. This eliminates any possibility of ignorance as a defence and places greater significance on due diligence.

Duty to Notify of Contaminated Land

"Notifiable contamination" provides a threshold, by which landowners may classify property contamination. Together, the legislation and regulations provide a clear definition. In the event the land is not covered in the regulatory definition, a monetary threshold for land remediation costs is provided in the legislation.

Severe civil and criminal penalties apply for breach of these duties, extending to a larger number of entities than previously permitted.

Next steps

From July 2021, relevant organisations will be required to establish and maintain a contamination system that operates to minimise environmental and human harm.

A contaminated land register will be implemented, requiring the ongoing identification and management of contaminated sites.

To prepare for these changes and ensure compliance with the legislative amendments, landowners may take steps to review current:

  • environment and safety manuals
  • procedures and training
  • reporting methods; and
  • waste management procedures and policies.

Landowners may consider volunteering for PRS screening as a cost-effective method of avoiding being subject to a scaled audit. It's important to be aware that "high-level" generic environmental policies will no longer be sufficient under the more stringent, prescriptive legislation.

Contact us for more information

If you're unsure about your obligations to comply with the new legislation by 1 July 2021, contact a Lander & Rogers representative for more information and support.

Further resources

Australia currently has an overlay of both Commonwealth and state/territory environmental regulatory frameworks.

At the Commonwealth level, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) manages the matters of national environmental significance.

Under this, an extensive network of state legislation provides for clear administrative mechanisms and enforcement by local authorities:

All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.

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Alexandra Harley

Alexandra Harley

Graduate