16 Sep 2021

Victoria's Environment Protection regime: transition of permissions, notices, classifications and policies

By Sallyanne Everett and Julia Gillies

Despite the repeal of the Environment Protection Act 1970 (Vic), some permissions, notices, directions and classifications are saved under the new 2017 Act as if the old Act had not been repealed, while others transition to be equivalent instruments under the new regime.

On 1 July 2021, the Environment Protection Act 1970 (Vic) (1970 Act) was repealed and replaced by the remaining provisions of the Environment Protection Act 2017 (Vic) (2017 Act). The 2017 Act is now the central environment protection legislation in Victoria.

However, most instruments in force immediately before the repeal of the 1970 Act will remain relevant under the new regime. Depending on the instrument, they may have transitioned into an equivalent instrument under the new regime, been saved for a specified period as if the old Act had not been repealed, or can be used (at least initially) to inform the standard of performance expected under certain new duties introduced by the 2017 Act, specifically the general environmental duty or GED.   

This article covers the saving and transitioning arrangements for:

  • permissions issued under the 1970 Act, many of which have been deemed to be new equivalent permissions under the 2017 Act
  • classifications issued under the Environment Protection (Industrial Waste Resource) Regulations 2009 (Vic) (IWR Regulations), some of which transition to designations issued under the Environment Protection Regulations 2021 (Vic) (2021 Regulations)
  • notices and directions issued under the 1970 Act, which continue for a period of 2 years as if the 1970 Act had not been repealed
  • State Environment Protection Policies (SEPPs) and Waste Management Policies (WMPs), which have mostly been repealed, but may remain relevant in determining what is expected in the performance of new duties imposed by the 2017 Act

Permissions

With the repeal of the 1970 Act, the Environment Protection (Scheduled Premises) Regulations 2017 were also repealed. 

However, the 2017 Act automatically carries across a number of these permissions, effectively deeming them to be equivalent permissions issued under the 2017 Act.  Some examples of "old" permissions that have transitioned to their corresponding "equivalent" new permission are set out below:

Table showing old and new permissions 

These old permissions are taken to be new permissions subject to the same conditions to which the old permission was subject under the 1970 Act.

Until 1 July 2022, EPA has the ability to amend these transitioned permissions for the purpose of ensuring consistency with the kinds of conditions that can be imposed under the 2017 Act.  EPA must provide at least 10 business days' notice if it intends to exercise this power.

While there is no right of review for a permission holder aggrieved by EPA's decision to amend their transitioned permission under this arrangement, the permission holder can request a 6 month stay on amendments to conditions taking effect which must be provided by the EPA.  

EPA has released specific guidance to assist licence holders who now hold operating licences under the 2017 Act.

There are a number of permissions issued under the 1970 Act that have not been transitioned to equivalent permissions under the 2017 Act, but have the benefit of a temporary exemption from the new permission requirements for a specified period (see regulations 222-234 of the 2021 Regulations).  However these exemptions will expire either on 1 October 2021 or 2 January 2022 by which time a new permission in respect of the activity will need to be obtained.

Key tip: If you hold a permission that has transitioned under the new regime, ensure that you understand the type of permission that you are now deemed to hold and be aware that EPA may amend the conditions of your permission under the transitional provisions up until 1 July 2022.

Classifications of general application

EPA had issued a number of classifications of general application under the IWR Regulations, which have now been repealed. 

The 2021 Regulations introduce a new instrument – a designation – that essentially replaces the role of classifications under the IWR Regulations.  While EPA has issued some general designations accessible on their website, most classifications of general application issued under the IWR Regulations have not been replaced with a general designation.

The new general designations that have been issued address:

Key tip: If you relied on classifications of general application issued under the IWR Regulations, check to see if there is an equivalent designation and if not, ensure you understand the duties and processes that apply to the classification and management of industrial waste in the 2017 Act and 2021 Regulations.

Classifications of specific application

Classifications of specific application (such as those issued in response to an application) have been saved by regulation 8 of the Environment Protection Transitional Regulations 2021.  These classifications:

  • are deemed to be designations made under the 2021 Regulations, and continue to be subject to any conditions that they were subject to under the old regime;
  • will expire on 30 June 2023, or earlier if revoked by the EPA or where an earlier expiry date is specified in the classification.

Notices and directions

Notices and directions issued under the 1970 Act that were in force immediately before 1 July 2021 are expressly saved by the 2017 Act, and continue in force as if the 1970 Act had not been repealed.  These notices and directions will cease to be in force on 1 July 2023, following which they will need to be replaced with a replacement notice or direction (where appropriate).

SEPPs and WMPs

Most of the State Environment Protection Policies (SEPPs) made under the 1970 Act have been repealed. However, some clauses of SEPP (Waters) have been saved under the regulation 7 Transitional Regulations for a period of 2 years (unless revoked sooner).

All of the Waste Management Policies (WMPs) issued under the 1970 Act have also been repealed.

In some instances, the contents of the SEPPs and WMPs have been replaced by the new Environment Reference Standard (ERS).  The ERS, made under section 93 of the 2017 Act and published in the Victoria Government Gazette, is "to be used to assess and report on environmental conditions" in Victoria.  It identifies indicators and objectives to be used to assess whether identified environmental values are being achieved or maintained in Victoria. 

However, repealed SEPPs and WMPs may remain relevant to ascertaining your obligations under the new regime.

The SEPPs and WMPs can, for example, form part of the "state of knowledge" relevant to the GED.  .

EPA has released a publication that provides guidance on how it envisages SEPPs and WMPs will be used under the new regime, and identifies where clauses of the SEPPs and WMPs have been replaced by provisions of the 2017 Act or 2021 Regulations, or new legislative instruments such as the ERS.

 

RELATED KNOWLEDGE

Related Knowledge

Get in Touch

Get in touch information is loading

Disclaimer

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.