Environment Protection Act fires the starting pistol for private actions

Third-party enforcement rights come into force 4 min read

The new Environment Protection Act 2017 (Vic) (the EP Act) brings a raft of changes, including introducing direct third-party enforcement rights. Eligible people will be able to bring actions against individuals and businesses they claim are in breach of the new Act from 1 July 2022.

This Insight outlines the key things companies should know about the third-party enforcement rights regime.

Key takeaways

• Following delays in commencement due to COVID-19, the EP Act came into effect on 1 July 2021 in Victoria.
• Its reforms include a new general environmental duty, positive duties to protect the environment in relation to contamination, pollution and waste, and a new unreasonable noise regime (see our previous Insight).
• The third-party rights are intended to supplement, not replace, enforcement action by the Environment Protection Authority (the EPA). However, we anticipate interest from third parties (including strategic litigants) in testing the new regime.
• The regime will be of particular interest to companies:
  • that may be subject to localised environment complaints, such as noise or odour; and
  • are emitters of greenhouse gases as part of their business operations.

Where can claims be brought?

Proceedings brought under the third-party enforcement regime can be commenced in the Supreme Court, the County Court or the Magistrates' Court.¹

Who can bring proceedings?

The new regime empowers any person to apply to court for breach of the EP Act if they are an 'eligible person', which means:

• a person whose interests are affected by the alleged contravention or non-compliance that is the subject of the application; or
• a person who has the leave of the court to bring an application. Leave will only be granted if the court is satisfied that:
  • the application would be in the public interest; and
  • the person had requested in writing that the EPA take enforcement or compliance action, but it failed to take enforcement or compliance action within a reasonable time.²

The EP Act does not provide a definition to determine when a person's interests are affected for the purposes of bringing an action. Instead, the court will determine whether a person's interests have been affected in line with common law principles.³ Case law provides helpful guidance on when a person's interests may have been affected, and suggests that the test is a broad one. For example:

• where the person is likely to gain some advantage or suffer some disadvantage based on the outcome of the action;⁴
• where the person's interest goes beyond the level of interest that a member of the public would have;⁵ and
• where the person would benefit in some way from the orders sought in their application.

This could capture both residential and business neighbours located near a facility, and people living further away who experience amenity impacts or otherwise have an interest in the compliance issue.

The public interest test will be assessed by reference to the EP Act's objects and key purposes, including whether the alleged breach:

• represents a risk to human health and/or the environment from pollution or waste;
• compromises the EPA's ability to ensure compliance with the EP Act; or
• is otherwise damaging to human health and/or the environment.⁶

Case law confirms that the public interest test is intentionally broad, to allow judges to use their judicial discretion to achieve a just outcome.

What can proceedings be brought for?

Civil proceedings can be brought for contraventions of, or non-compliance with, the EP Act or permissions granted under the EP Act, including:

• breach of the general environmental duty; and
• other specific contraventions of the EP Act.

The general environmental duty requires 'people engaging in activities that may give rise to risks of harm to human health or the environment from pollution or waste to understand those risks and take reasonably practicable steps to minimise them'.⁷ We expect that the general environmental duty will be used to test a wide range of compliance matters, including both environmental incidents, and gaps in a business's risk-management practices. The new regime covers a very broad range of environmental issues, including land and water contamination, mismanagement of waste, industrial noise and greenhouse gas emissions.

What remedies will be available?

Part 11.4 of the EP Act sets out various remedies available to third parties (and also to the EPA), including:

• an order by the court restraining a person / company from doing a particular activity;⁸
• an order requiring a person / company to take a specific action;⁹
• an order requiring the person / company to provide a financial assurance;¹⁰ and
• a compensation order payable to the claimant, including for the injury, loss or damage suffered, and costs.

Next steps

In preparation for the commencement of the third-party enforcement regime on 1 July 2022, businesses should:

• identify any projects that are at risk of enforcement action;
• ensure they have clear and documented systems in place to deal with their obligations under the EP Act; and
• ensure there clear strategies to manage community engagement, including a robust and effective complaints procedure.