26 October, 2019
Environment Protection Act 2017 (Vic)
What you need to know
- Draft Environment Protection Regulations under the Environment Protection Act 2017 (Vic) include much of the detail about Victoria's new laws around "permissions".
- The activities requiring the three new types of permissions – licences, permits and registrations – are prescribed under the Regulations.
- Some new activities will require a permission that were not previously regulated under the old works approvals or licences.
- The Regulations set out further detail around the application and assessment processes for permissions.
What you need to do
- Consider whether your business is carrying out an activity that will require a permission under the new regime.
- Consider making a submission in response to the draft Regulations by 31 October 2019.
- Consider attending our upcoming seminar about the new regime.
This edition of our Victorian Environmental Alert series expands upon our high level overview of the new framework for "permissions" to carry out certain activities that pose a significant risk to human health and the environment that will be contained in the Environment Protection Act 2017 (Vic) (New EP Act) and proposed Environment Protection Regulations (Regulations).
The Regulations set out detail around the new permissions regime, including:
- which type of permission will be required for particular activities;
- new activities that will now require a permission; and
- the application and assessment process for permissions.
The Regulations are open for public comment via the Engage Victoria website until 31 October 2019.
Licences, permits and registrations
The old works approvals and licences will be replaced with three tiers of permissions, ranging from licences for the highest risk activities, permits for medium risk activities to registrations for lower risk activities.
Licences are divided into three types including: development licences for development or modification of plant, equipment or processes, operating licences for engaging in an activity and pilot project licences for a research, development or demonstration activity. For more detail of these licence types and transitional arrangements under the Act, please see Edition 3 of our New Victorian Environmental Protection Laws: A three-tiered approach to environmental approvals: licences, permits and registrations
The level of assessment and regulatory control varies according to the type of permission:
Source: EPA publication "Guide to the proposed Environment Protection Regulations", September 2019.
Which type of permission do I need?
Schedule 1 of the Regulations sets out the specific activities requiring a particular type of permission.
There is considerable overlap between the permission activities listed in the Regulations and the types of "scheduled premises" listed under the current Environment Protection (Scheduled Premises) Regulation 2017, which will be replaced by the new regime. There are some newly regulated activities (discussed below) and changes to available exemptions.
In many cases, whether an activity requires a licence, permit or registration will depend on the processing or production volumes, with higher volumes requiring a licence, and lower volumes requiring a permit or registration.
Newly regulated activities
Some newly regulated activities under the Regulations include:
- low volume e-waste reprocessing (registration activity);
- small municipal landfills servicing <5000 people (development licence and permit activity);
- low volume organic waste processing (registration activity);
- low volume waste tyre storage (registration activity);
- transporting reportable priority waste (permit or registration activity depending on hazard classification);
- transporting controlled waste into our out of Victoria;
- waste and resource recovery (licence, permit or registration activity depending on volume);
- supply or use of wastewater, biosolids or reportable priority waste (permit activity);
- containment of category D waste soil (permit activity);
- discharge of waste to aquifer (permit activity);
- temporary on-site industrial waste treatment (permit activity);
- low volume on-site wastewater management systems (permit activity);
- temporary storage of low volume biomedical waste, asbestos or designated waste under certain conditions (registration activity);
- operating an animal industry, livestock saleyard or holding pen that deposits waste solely to land (development licence and permit activity);
- low volume glass reprocessing (registration activity);
- operating outdoor entertainment venue or event outside of prescribed operating hours (permit activity);
- conducting more than six outdoor concerts or entertainment events (permit activity); and
- conducting commercial dry-cleaning (registration activity).
If your business is carrying out one of the above activities, we recommend checking the detail of the activity (and any exemption) in the Regulations and considering whether to make a submission as part of the review process.
Details of the application and assessment processes
Development licences
An application for a development licence is made to the EPA and must be determined within 4 months.
The EPA must refer applications to other agencies prescribed under the Regulations for particular types of applications (including government departments such as Health and Human Services and Jobs, Precincts and Regions and the local council) and any other agency the EPA considers appropriate in the circumstances.
Members of the public can make submissions in respect of a development licence and seek review of the EPA's decision at VCAT.
The Act sets out the matters the EPA must take into account when considering an application for a development licence (including comments and submissions from other agencies and members of the public) as well as the circumstances when the EPA must refuse to issue a development licence.
Operating licences
An application for an operating licence is made to the EPA and must be determined within 42 business days of receiving a valid application (or less where a development licence is already held for the activity).
The Act sets out the matters the EPA must take into account when considering an application for an operating licence and the circumstances when a licence must be refused. The Regulations prescribe further circumstances when an operating licence for landfills must be refused.
An operating licence lasts for up to 20 years (except for waste management activities at current or former landfill sites, which can last for up to 99 years).
Pilot project licences
An application for a pilot project licence in respect of a research, development or demonstration activity is made to the EPA and must be determined within 22 business days of receiving a valid application.
As with other licence types, The Act sets out the matters the EPA must take into account when considering an application and the circumstances when a licence must be refused.
Pilot project licences remain in force for up to 5 years.
Permits
An application for a permit is made to the EPA or the local council (in the case of permits for on-site wastewater management systems) and must be determined within 42 business days.
The Regulations prescribe matters that the EPA or council must take into account when considering an application, including:
- matters applicable to all activity types (eg measures the applicant will take to comply with the general environmental duty); and
- matters specific to the particular activity type (eg best available technologies where a person is seeking a permit to transport reportable priority waste, or the
number of previous complaints where a person is seeking a permit to operate an outdoor entertainment venue outside of hours).
The Regulations also prescribe circumstances where the EPA or council must refuse applications for certain permit activities.
Permits last for between 1 and 5 years depending on the activity type and can be renewed multiple times.
Registrations
An application for a registration is made to the EPA. Validly made applications are automatically granted subject to any standard conditions within 10 business days.
Registrations last for up to 5 years and can be renewed multiple times.
Timeline
The Regulations are open for public comment via the Engage Victoria website until 31 October 2019. Feedback can be uploaded via the online form or sent by email or post. There is an option to identify submissions as confidential, in which case DELWP/EPA will not publish the submission.
Public submissions will be reviewed in late 2019, with a view to the final Regulations being made in early to mid-2020. The EPA/DELWP's response to public comments will also be released around this time.
It is intended that the new regime will come into force from 1 July 2020.
Other articles in our New Victorian Environment Protection Laws series
In the previous editions of this alert series we have discussed some of the key changes resulting from the New EP Act. A link to our previous publications is below.
Over the coming weeks, we will be providing more detailed updates in relation to some of key items contained in the Regulations and Standard.
Environment Alert: The end of Victoria's environmental law as we know it? (22 June 2018)
New Victorian Environment Protection Laws – A new environmental duty in Victoria – all you need is a risk of harm – Edition 1 (9 July 2018)
New Victorian Environment Protection Laws – A three-tiered approach to environmental approvals: licences, permits and registrations – Edition 3 (7 August 2018)
New Victorian Environment Protection Laws: New duties for the reporting and management of contaminated land – Edition 4 (17 September 2018)
New Victorian Environment Protection Regulations and Environment Reference Standard released for public comment – Edition 5 (5 September 2019)
Penalties and enforcement under the new Victorian Environment Protection laws – Edition 6 (19 September 2019)
For further information, please contact:
Robert Jamieson, Partner, Ashurst
robert.jamieson@ashurst.com
