Commencement of Victoria's new Environment Protection Act amendments postponed, but consultation continues on guidance materials and subordinate legislation

On 22 April 2020, the Victorian Government announced the commencement of the new environment protection regime under the Environment Protection Act 2017 (Vic) (EP Act) will be postponed until 1 July 2021 (or earlier by proclamation). The postponement is to allow business and industry to focus on the immediate impacts of COVID-19, and is expected to be confirmed shortly in legislation which was introduced to the Victorian Parliament on 23 April. However, the EPA and DELWP are continuing to consult on draft regulatory guidance and subordinate legislation to support implementation of the new regime – this article discusses recent developments.

Two tranches of consultation documents you should be aware of are:

• EPA’s release on 30 March 2020 of consultation drafts of Publication 1850: Guidance for operating licences (here) and Publication 1851: Implementing the general environmental duty: A guide for licence holders (here); and
• DELWP consultation commencing 3 April 2020 on proposed changes to Victoria’s land use planning regime, including addressing contaminated land in planning scheme amendments, to dovetail with the regulatory regime under the EP Act. Submissions may be made to DELWP here prior to 5 May 2020.

What you need to know

• Holders of existing licences and proponents of new projects should consider the implications of Publication 1850 on their operations. The EPA will be reviewing existing licences, and updating conditions, which could have significant impacts;
• All licence holders will be subject to conditions requiring them to prepare and implement a risk management and monitoring program (RMMP) to demonstrate compliance with the general environmental duty (GED), as detailed in Publication 1851. This will replace the existing standard monitoring condition, and go further in requiring consideration of environmental risks even if they are not subject to specific conditions in a licence; and
• The proposed changes to Victoria’s land use planning framework will mean greater scrutiny of planning permit applications and proposed rezoning for contaminated or potentially contaminated sites.

Publication 1850: Guidance for operating licences

The draft guideline outlines:

• standard content for EPA operating licences, for both new and existing licence holders;
• how the new operating licences will differ from environment protection licences under the current legislative framework; and
• the EPA’s principles and approach for review of licence conditions.

Holders of current licences should be aware that existing licences will be updated to reflect the new legislative framework and the purpose and scope of their licence may change. Specifically, the EPA advises that, where a licence holder’s current focus is on pollution detection rather than risk reduction, changes in operations will be necessary to meet the requirements of the new preventative framework, with the GED at its core.

Licence content

The EPA aims to increase uniformity of form and content of licences.

Each licence will be subject to standard conditions (replacing general standard conditions G1-5) that establish legal obligations to set up a framework for risk management, record keeping, reporting and decommissioning under the EP Act.

Special conditions will cover amenity conditions (risks of odour, noise and dust), discharge conditions (discharge limits for air emissions or water discharges) and sectoral of site-specific conditions.

Publication 1851: Implementing the GED

In accordance with the new guidelines, every licence holder is required to implement an RMMP that demonstrates compliance with the GED. Accordingly, the RMMP is required to:

• reflect the range and complexity of the activities on site, and the risks to human health and the environment that they present;
• define environmental and risk objectives and describes how there are being achieved;
• provide a tool to eliminate or mitigate risk of harm so far as is reasonably practicable;
• be signed by a duly authorised officer; and
• be made available to the EPA on request.

The Publication 1851 guidance note sets out the steps to assist with the development of a RMMP and supporting documents such as (but not limited to):

• risk assessment records;
• environmental performance indicators;
• operational control procedures;
• work instructions;
• monitoring schedules; and
• monitoring records.

Incident and emergency response, training, performance evaluation and operational control procedures may be included within a RMMP. The EPA has identified that continual improvement and review are central requirements for complying with the GED and to ensure proactive environmental management.

All operating licence holders will be subject to a condition requiring them to prepare and implement an RMMP to demonstrate compliance with the GED. This will replace the existing standard monitoring condition, and go further in requiring consideration of environmental risks even if they are not subject to the specific conditions of a licence. This will require industry to take a proactive approach to the GED, with the RMMP being a key document in demonstrating compliance. On the basis of the standard licence conditions on consultation, the RMMP will not be required to be provided to the EPA as a matter of course. However it is a document that is likely to be required to be produced in the event of EPA inspections, including in response to environmental incidents.

Integrating environment protection reform into land use planning

In addition to the release of the above draft guidance materials, consultation is now open in respect of proposed changes to the Victorian Planning Provisions (VPPs), Ministerial Direction No. 1 – Potentially Contaminated Land (Ministerial Direction), and Planning Practice Note 30 - Potentially Contaminated Land (Practice Note). The changes respond to recommendations in the 2016 Independent Inquiry into the EPA calling for better integration between land use planning and Victoria’s environment protection regime.

Updates to the VPPs

The VPPs apply across all planning schemes in Victoria. The proposed changes seek to ensure that the VPPs are in harmony with the regime to be introduced under the EP Act, and are set out in the below table.

Various other administrative amendments are also proposed to update references throughout the VPPs to accord with the EP Act framework.

Ministerial Direction No. 1 – Potentially Contaminated Land

DELWP is also consulting on proposed updates to the Ministerial Direction, which sets out the process planning authorities must undertake when considering planning scheme amendments that relate to potentially contaminated land. Key proposed updates to the Ministerial Direction include:

• Expanding the definition of ‘sensitive use’ to include secondary schools and children’s playgrounds, and to expressly capture sensitive uses that are ancillary to another use;
• Updates to audit requirements in line with the framework under the EP Act, including references to preliminary risk screen assessments as an alternative mechanism to a full environmental audit in some circumstances;
• Changes to the circumstances where a planning authority may defer the requirement for an audit by applying the Environmental Audit Overlay. To take this pathway under the proposed changes, a planning authority will need to be satisfied that:
  • there is a reasonable expectation of remediation; and
  • due to specific constraints of the land or the nature of the amendment, it would be unreasonable or impractical to require an audit.

This process will be more onerous than the existing regime, which enables an amendment to progress provided that it includes a requirement for a certificate or statement of environmental audit to be issued before construction commences.

Planning Practice Note 30 - Potentially Contaminated Land

The Practice Note has also been updated to accord with the environment protection regime under the EP Act. It includes updated guidance as to the nature of assessment appropriate for the identification of potentially contaminated land. The Practice Note will guide authorities in their approach to assessing potentially contaminated land when making planning decisions, and proponents should have regard to it when firming up their environmental assessments.

Next steps

DELWP’s consultation on proposed changes to the VPPs, Ministerial Direction and Practice Note closes for public comment on 5 May 2020. You may wish to consider making a submission.

If you are considering how your business will respond to the GED, develop an RRMP that complies with the environment protection reforms and ensure your amended operating licences are appropriate for your ongoing operations, we are happy to assist at the contact details below.

By Heidi Asten, Partner, Thomas Ellicott, Senior Associate, and Amanda Helliwell, Senior Associate