15 August, 2018
What you need to know
The Environment Protection Amendment Bill 2018 (the Bill) proposes to introduce a tiered approvals framework which will replace the current works approvals and licences under the Environment Protection Act 1970 (Vic) (the Principal Act).
The Bill provides for three categories of approval (referred to collectively as "permissions"): licences, permits and registrations. Licences will be required for complex activities that require the highest level of regulatory control, whereas permits and registrations will be required for low to medium risk activities.
The activities requiring each type of approval will be set out in the regulations which have not yet been released.
Approvals already granted under the Principal Act will be transitioned to one of the new categories of approval.
If the Bill passes, the proposed reforms will take effect from 1 July 2020.
What you need to do
Organisations and businesses operating in Victoria should be on the lookout for the release of the draft regulations which will provide detail about the classes of activity requiring each type of approval. We expect the draft regulations will be released for public comment by industry and the public prior to finalisation.
The proposed framework may increase the regulatory burden for some businesses engaging in low to medium risk activities that will require a registration or a permit under the new regime.
This is the third instalment of our New Environment Protection Laws Series about the ways in which theEnvironment Protection Amendment Bill 2018 (Vic) (Bill) is reshaping Victoria's environmental protection laws.
In our previous alerts we discussed the introduction of the 'general environmental duty' and reforms to the review rights of eligible persons and third parties under the Bill.
Background to the new approvals framework
One of the key findings of the 2016 Independent Inquiry into the Environment Protection Authority (EPA) was that smaller, unlicensed polluters have significant cumulative impacts on the environment, yet are not subject to the licensing regime.
Under the Principal Act, EPA currently regulates high risk activities through works approvals and licences.
The Inquiry recommended that the activities requiring approval be expanded to include all activities with significant or potential impacts on human health or the environment.
The Bill achieves this by introducing two new categories of approvals, called "permits" and "registrations", for medium to low risk activities. We understand that obtaining and complying with these lower tier approvals will be less onerous and costly than for "licences", which are broadly analogous to the current approvals for high risk activities under the Principal Act.
Overview of the new categories of "permissions"
Licences will be required for complex activities that require the highest level of regulatory control to manage their significant environmental impacts.
The Bill proposes three different types of licences:
- Development licences, which are the equivalent of a works approval under the Principal Act, will be required for prescribed development activities, such as the construction of certain plant and equipment or the modification of high-risk processes or systems.
- Operating licences, which are similar to a licence under the Principal Act, will be required for prescribed operating activities. They will be granted for a maximum period of 99 years for certain waste management activities, and otherwise for no more than 20 years. The EPA has rights to review operating licences every four years.
- Pilot project licences, which are the equivalent of a research, development or demonstration approval under the Principal Act, and will be required for research, development or demonstration activities. A pilot project licence will remain in force for the period specified in the licence, which must not exceed 5 years.
- Permits will be required for medium-high risk activities with low-complexity. They will be evaluated under a standardised assessment process and will typically remain in force for five years, and can be renewed for a further period of up to five years.
- Registrations will be required for low-medium risk activities where controls can be standardised across a sector. They will be automatically granted upon application with standard conditions and will typically remain in force for five years.
Transitional arrangements for "old permissions"
The Bill includes transitional arrangements for existing environmental approvals granted under the Principal Act (defined as "old permissions") which will automatically become one of the new categories of approvals.
Works approvals will become development licences, but it is not yet clear how licences under the Principal Act will be transitioned. Presumably most licences under the Principal Act will become "operating licences" under the new regime, however, the detail of this transition remains to be prescribed by regulation.
Old permissions will retain the same conditions, although the EPA has broad power to amend or revoke conditions of old permissions within the first 12 months after commencement of the new regime.
Next steps
Much of the practical detail about the changes remains to be released in the regulations. Affected businesses and organisations operating in Victoria should watch out for draft regulations and carefully consider how the changes may impact their approval requirements.
Some potential issues to look out for are:
- new approval requirements for medium to low risk activities;
- transitional arrangements for current licences;
- the approach where activities of an operation are subject to multiple approval tiers; and
- the nature of standard conditions for "registrations" and opportunities to vary or seek exemption from these.
We expect there will be an opportunity to comment on the draft regulations before they are finalised.
If the Bill passes Parliament, the proposed reforms will take effect from 1 July 2020.
For further information, please contact:
Robert Jamieson, Partner, Ashurst
robert.jamieson@ashurst.com
