Environmental Offences (Vic)

Environmental offences under Victorian law encompass a wide range of activities that harm the environment. The main piece of legislation that governs environmental offences in the state is the Environment Protection Act 2017.

Environmental Protection Authority

The authority is the state’s environmental regulator, responsible for compliance, investigation and enforcement of environmental laws. It administers the Act as well as a range of other legislation, including the Pollution of Waters by Oil and Noxious Substances Act 1986 and the National Environment Protection Council (Victoria) Act 1995.

What are environmental offences?

Under the Act, a person has a general duty to minimise, as far as reasonably practicable, risks of harm to human health and the environment. “Harm” includes:

• an adverse effect on the amenity of a place or premises that unreasonably interferes or is likely to unreasonably interfere with enjoyment of the place or premises; and
• a change to the condition of the environment so as to make it offensive to the senses of human beings.

Harm can arise from the cumulative effect of an activity combined with other activities or factors.

The Act contains a range of environmental offences where someone breaches this general duty. Examples are littering and unreasonable noise.

Littering

Littering is the illegal depositing of waste. A person does not litter if they:

• deposit waste in a place that is provided for the deposit of waste and is appropriate for waste of that size, shape, nature or volume;
• deposit waste in or on a premises or place with permission from the person who owns, controls or is in possession of the premises or place;
• are authorised to deposit the water under legislation;
• deposit waste as a result of lawful activity and it is not reasonable for the person to avoid the action;
• accidentally deposit the waste and it is not reasonably possible for them to retrieve it.

Waste can be blown from, or fall or escape from a premises or place.

Littering by a person incurs a fine of 20 penalty units ($8635) for a person, or 100 penalty units ($18,174) for a company. If the litter is dangerous litter, the penalty triples. Refusing a direction from a litter enforcement officer to remove the waste incurs a fine of 10 penalty units ($1817) for a person, or 50 penalty units ($909) for a company. If a littering matter goes to court, a court can order a person or company to remove the waste and pay compensation, instead of or on top of any other penalty.

Noise

A person must not emit an unreasonable noise, or permit an unreasonable noise to be emitted, from a residential premises. This offence incurs a fine of 120 penalty units ($21,809) for a person, or 600 penalty units ($109,044) for a company. If the unreasonable noise is emitted from an entertainment venue, a police officer can enter the venue and direct the person in charge to stop the noise. Non-compliance with the direction incurs a fine of 120 penalty units ($21,809) for a person, or 600 penalty units ($109,044) for a company.

Enforcement

The Act provides for a range of enforcement options for authorities, such as remedial notices and court orders.

Remedial Notices

The Act allows several types of remedial notices to be issued where a person or business is not complying with the Act, or where there is waste or contamination present that needs treatment.

• An improvement notice requires action to remedy non-compliance;
• A prohibition notice requires the person to stop the activity in order to prevent harm to human health or the environment;
• A notice to investigate allows an officer to investigate contamination, pollution or waste;
• An environmental sanction notice requires a person to clean up contamination, pollution or unlawful waste;
• A waste abatement notice requires a person to remove waster, restore places that have been affected by it, and modify future activities;
• A non-disturbance notice secures a site so it can be investigated.

The EPA also has the power to issues a “site management order” which requires long-term management or rehabilitation of contaminated land, or a broad range of actions to manage the risk of harm. To deal with immediate risks, the EPA has the power to issue a “direction” to any person to take any action it reasonably believes is needed to address the risks. The direction takes immediate effect and can be given verbally and followed up in writing later. A person must comply with the direction unless they have a reasonable excuse.

The EPA itself can conduct a clean-up where there is an immediate or serious risk of harm to human health or the environment arising from pollution, waste or contaminated land. It will usually intervene in this way when all attempts to have the party responsible address the risk have failed. The clean-up will usually be limited to reducing the immediacy or seriousness of the risk, with the responsibility for further clean up falling to the party who owns or occupies the land.

Court orders

The court can make a range of orders in addition to or instead of any other penalty it may impose for an environmental offence.

• A monetary benefit order requires a person to pay an amount they accrued as a result of the offence;
• An adverse publicity order requires a person to publicise their offending or any impacts of it on human health and the environment, and any penalties or orders made;
• A prevention order requires a person to prevent, minimise or remedy any harm caused, and eliminate the risk of further harm;
• A restorative project order requires a person to carry out a project to restore or enhance the environment in a public place for the public benefit.

For advice or representation in any legal matter, please contact Armstrong Legal.