Waste sector update: Victoria to have a new Waste Authority and new buffer area overlays

Introduction

The Department of Environment, Land, Water and Planning (DELWP) is currently consulting on two reforms that are set to have wide reaching effects for the waste and resource recovery sector.

DELWP has released and is seeking feedback on the Waste and recycling legislation and governance options paper (Waste Options Paper) which flags a new Waste Authority for Victoria in addition to a new Waste and Recycling Act, both to be established by 2021.

DELWP has also released a draft Buffer Area Overlay (BAO) for consultation which if finalised, could be included in planning schemes in Victoria and applied to areas with a risk of off-site impacts to health and safety caused by industry, including waste facilities. DELWP aims to finalise the overlay this year.

A new Act and a new Waste Authority

The Waste Options Paper follows the broader Victorian waste policy and action plan Recycling Victoria: A new economy, which was released in February 2020. That policy contained a commitment to develop a new Waste Authority underpinned by the new Waste and Recycling Act (W&R Act).

The W&R Act

The W&R Act aims to be a holistic Act for the waste and recycling sector by addressing one of the current deficiencies in the waste regulatory framework, namely that there is no clear entity with overall obligations and responsibility for waste and recycling services.

The primary purpose of the W&R Act will be to achieve two complementary objectives:

• to support Victoria to achieve its waste and resource recovery goals, in line with the waste hierarchy; and
• to ensure waste and recycling services are reliable and meet community expectations.

The W&R Act will establish a container deposit scheme, state-based product stewardship schemes and a new waste and resource recovery infrastructure plan.

The new Waste Authority

The proposed key governance features of the new Waste Authority include:

• established as a separate entity with state-wide oversight including absorbing the functions of the 7 existing Waste and Resource Recovery Groups;
• absorbing the infrastructure planning function of Sustainability Victoria (but with SV retaining all other existing functions);
• a requirement to establish advisory committees, including one for local government and one for the regions;
• DELWP will continue to manage and provide Victorian waste and recycling policy;
• the EPA will remain the regulator of the waste and recycling sector with the aim of minimising impacts on human health and the environment;
• councils will remain responsible for providing households in their local government areas with waste and recycling services, but with oversight from the Waste Authority.

The functions of the new Waste Authority will include:

• supporting councils to arrange, negotiate and contract with waste and recycling service providers to ensure their arrangements are robust and contribute to state-wide outcomes;
• providing support to councils to collaborate in procuring waste and recycling services (i.e. by transferring the current WRRGs collaborative procurement function to the new authority);
• performance auditing of recycling providers, including monthly reporting (to complement the reporting requirements established under the Environment Protection Amendment Act 2018), with data collected potentially used to create a central database about Victoria’s waste processing and landfill capacity;
• ability to impose mandatory service standards and targets to be met by waste service providers including:

• requirements for business to separate waste for recycling from 2025;
• items which can be accepted for recycling and bin lid colours – this will give households access to four key waste and recycling services – organics, glass, co-mingled recycling and residual waste; and
• transparency on household waste charges (i.e. separated waste charges from council rates); and

• powers to establish recycling market schemes to enable responses to change in market conditions when different waste streams experience opportunities or challenges (similar to comparable powers in NSW).

The Waste Authority’s functions will be backed by powers to:

• mandate the use of the Waste Authority’s standard form contracts;
• mandate that councils’ procurement contractual documents are provided to the Waste Authority for review and approval; and
• enforce council contracts with service providers (e.g. by preventing councils from withdrawing from collaborative procurement once they have agreed to participate).

Consultation on the Waste Options Paper closes on 9 October 2020. Stakeholders likely to be affected by the significant reforms proposed by the W&R Act should consider lodging a submission to ensure potential concerns and opportunities are taken into account as part of the review.

New Buffer Area Overlay

The Buffer Area Overlay (BAO) which can be applied in Victorian planning schemes is intended to prevent incompatible use and development within buffer areas of existing or approved industry or other uses (including waste industries) that have potential off-site impacts.

Recognition of the need for a new buffer and overlay system was noted in a 2019 DELWP consultation report: Planning for buffers and separation distances.

The BAO does not duplicate or replace any existing regulations or standards that govern off-site impacts such as the State Environment Protection Policies or licences issued under the Environment Protection Act 1970. Rather, the BAO identifies areas where despite compliance with existing regulations governing land use, there is a need for additional controls due to off-site impacts.

What off-site impacts are relevant for a BAO?

The purpose of applying a BAO is to address risks to human health or safety, rather than low-level amenity impacts such as noise or odour which cause a mere annoyance or inconvenience.

Examples of where the BAO may apply include:

• noise impacts that cause severe sleep disturbance;
• dust that causes illnesses such as asthma;
• landfill gas migration which has the potential to cause health impacts and explosion; and
• odour which could cause impacts on human health.

Application of the BAO must be supported by evidence of the potential types of impacts caused by a use which is ‘generally compliant’ with the regulations and standards, spatial extent of the impacts (i.e. the buffer area) and the requirements for land use and development within the buffer area.

Implementation of the BAO would be through schedules to the overlay. Requirements in a schedule to the BAO will vary depending on the specific off-site impacts, and multiple schedules may be required for different impacts.

In the landfill context, it may be appropriate to have multiple schedules including separate buffer areas for odour and landfill gas migration. Therefore the BAO is not a “one size fits all” overlay, and the use of multiple schedules allows the application of different types of buffers and restrictions on use and development tailored to the industry and the characteristics of a particular site.

DELWP consultation on the draft BAO closes on 14 October 2020.

For more information about the Waste Options Paper, the BAO or assistance in drafting a submission, please contact a member of our planning and environment team.

This article was co-authored with Sebastian Withers.