Do works required by an EPA clean-up notice require a planning permit?

In PG Laverton Property No 5 Pty Ltd v Australian Vinyls Corporation Pty Ltd and Wyndham City Council,[1] the Supreme Court of Victoria ruled works amounting to clean up and ongoing management measures directed and specified in a clean-up notice issued by the Environment Protection Authority (EPA) do not require a permit under Victorian Planning Schemes.

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Background

The decision arose in the context of an appeal brought by LPG Laverton Property No 5 Pty Ltd in respect of the Tribunal’s decision in proceedings nos. P1338/2019 and P1624/2019.

In 2016, the Australian Vinyls Corporation (AVC) ceased manufacturing and started decommissioning its plant in Laverton. During this process, parts of the land and groundwater were discovered to be contaminated.

The EPA subsequently issued the AVC with a clean-up notice. Following receipt of that notice, AVC applied to Wyndham City Council for a permit to construct an environmental bund to consolidate the contaminated soil.

LPG Laverton (LPG), the adjoining landowner objected to the proposed works.

The Council ultimately determined to grant a permit and LPG sought to review the Council’s decision to grant the permit.

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Tribunal’s decision

The Tribunal determined s 62A(1B) of the Environmental Protection Act 1970 (EP Act) operates so as not to require a planning permit for works to be undertaken for the purposes of complying with a clean-up notice.

The Tribunal found if a permit is refused, works to clean up a site cannot lawfully take place under the legislative regime despite being contrary to the purposes of both the EP Act and the Planning and Environment Act 1987 (PE Act).

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Court’s decision

On appeal, the Court decided the Tribunal erred on the questions of law, allowing the appeal.

Specifically, the Court was asked to interpret s 62A(1B) of the EP Act reading:

The clean up and on-going management measures directed by the Authority to be taken are to be completed and performed as specified in the notice, notwithstanding anything to the contrary in –

(a) the Planning and Environment Act 1987 or any regulation, planning scheme or permit made, approved or granted under that Act

(b) the Building Act 1993 or any regulation or permit made or granted under that Act.

The Court determined a clean-up notice ousts the operation of the PE Act only to the extent the notice directs the performance of specific measures requiring a permit or consent.

Informing its view, the Court remarked s 62A(1B) is a ‘pivotal’ provision of the EP Act comprising two parts:

• the first requiring the recipient of a notice to complete and perform measures directed by the EPA as specified in the notice (including works, tests, measurements, reports, the retainer of consultants and contractors as set out in the definition of ‘clean up’ in s 4 of the EP Act); [2] and

• the second part, being of ‘prime importance’ [3] providing a notice has effect regardless of any prohibitions or restrictions imposed on the measures by the PE Act. [4]

The Court stated the purpose of s 62A(1B) is to require and expedite compliance with clean up measures specified in notices by removing regulatory barriers. [5] By overriding the operation of the PE Act for works specified in a notice, the Court acknowledged s 62A(1B) excludes third-party rights to object to the works or seek review before the Tribunal.

In interpreting the provision, the Court placed particular emphasis on the words 'as specified in the notice’ contained in s 62A(1B), remarking the provision does not state all works that may need to be performed on contaminated land following the service of a notice are exempted from the PE Act.

The Court ultimately concluded where works are proposed following the service of notice, it is a matter of jurisdictional fact for the Tribunal to determine whether the works amount to clean up and ongoing management measures directed and specified in the notice. If they are, s 62A(1B) overrides the PE Act and Building Act. If they are not, then planning and building controls apply in the usual way.

The Court’s decision effectively requires a decision maker to look at each and every clean up notice issued by the EPA to ascertain whether planning or building controls have been ousted by a notice and as a consequence whether a planning permit is required. The Court conceded this adds ‘unnecessarily to administrative and regulatory burdens’ but is nonetheless required under s 62A(1B).

Ultimately the Court determined the notice forming the subject of the appeal did not impose any general requirements, nor did it direct or specify any measures byway of physical remediation. Rather, it only specified reporting requirements, which do not attract the second part of s62A(1B) or operate to oust planning and building controls. [6]

Please contact one of our team should you require any assistance in applying this decision and determining whether or not a permit is required in respect of a clean-up notice.

[1] [2020] VSC 689.

[2] At [51].

[3] At [51].

[4] At [52].

[5] At [62].

[6] At [65].