New Permissions and the transitional arrangements under the new Environment Protection regime in Victoria

The Environment Protection Act 2017 (Vic) incorporating amendments from the Environment Protection Amendment Act 2018 (Vic) (New Act) will introduce a new permissions framework.  There are also important transitional provisions to assist in the transition to the New Act.  In this legal update we examine the new types of permissions and activities not previously regulated as well as how the legal “transition” will occur in moving from the Environment Protection Act 1970 (Old Act) to “switching on” the New Act.

What are the new permissions?

The New Act creates a new tiered and risk-based permissions framework which correlates the risk of the activity regulated to the type of permission required. The new permissions are:

• Licences (highest risk activities)
• Permits (medium-risk activities)
• Registrations (lowest risk activities)

The types of permission required for a particular activity are listed in Schedule 1 to the Environment Protection Regulations 2021 (New Regulations) and the relevant application and assessment processes are also contained in the New Regulations.

How are existing permissions transitioned under the New Act?

The New Act provides a regime to ensure that existing permission holders will be “taken” to hold an equivalent new permission from 1 July 2021 which (for the time being) will be subject to the same conditions as the old permissions.

The table below sets out the old and new permissions:

The EPA has 12 months from the commencement of the New Act (i.e. until 1 July 2022) to amend, revoke or alter the conditions on a “transitioned” permission to ensure that it is consistent with the requirements of the New Act.  The permission holder will be able to request six months to comply with the amended or new conditions but it will not have review rights to challenge the changes to the conditions at the Victorian Civil and Administrative Tribunal.

What currently unregulated activities will require permissions under the new regime?

Under the Old Act certain scheduled activities require a permission to enable an entity to undertake that activity. The number of activities regulated will increase from close to 50 activities to approximately 78 under the New Act. As such, there are 28 activities that were not previously regulated which will require a permission. 

The most significant activities not previously captured by the licensing regime are waste and resource recovery facilities.  The kind of permission required for waste and resource recovery facilities will depend on the hazard level and the processing/production level.¹ The table below sets out the new activities requiring a permission:

Applications for the activities above can be made through the EPA’s online portal which is expected to open for applications on 1 July 2021.

How are currently operating unregulated activities permitted to continue operating where they don’t have a permission on 1 July 2021?

If one of the activities above is currently being undertaken prior to 1 July 2021, the New Act and New Regulations allow a “grace period” for an application for the relevant permissions to be obtained as follows:

• For prescribed operating licence activities being undertaken (e.g. large waste and resource recovery facilities) you will need to apply for a licence by 1 October 2021. An exemption from the need to have an operating licence applies until the earlier of 1 October 2021 or the EPA determines the operating licence application.
  
  
• For prescribed permit activities you will need to apply for a permit by:
  • for medium waste and resource recovery facilities – 1 October 2021
    
  • for supply or use of priority waste, containment of category D waste soil, discharge to an aquifer or temporary onsite waste treatment – 1 January 2022

  An exemption from the need to have a permit applies until the earlier of the above dates or the day when the EPA determines the permit application.

• For prescribed activities requiring a registration, you must apply by (and an exemption from the need to have a registration applies until) 1 January 2022.
  
  
• Where one of the activities above or any of the activities covered by the New Regulations requires a permission and the activity is not currently being undertaken, the permission should be sought from 1 July 2021 and before the activity commences.

What happens to existing remedial notices, undetermined applications or uncompleted environmental audits?

Where applications for old permissions are on foot, notices or directions are in force or an environmental audit is underway under the Old Act, the New Act provides transitional provisions for how those applications, notices or audits are to be treated once the New Act commences.

The table below sets out how applications, notices, exemptions and audits on foot will “transition” under the New Act:

How can you prepare for the introduction of the new permissions regime and the transition to the New Act?

Before the New Act and New Regulations commence you can prepare by:

• Familiarising yourself with the new permissions and activities requiring a permission – as discussed above, there are approximately 28 activities which are not currently regulated by the EPA permissions regime. Do you currently undertake one of those activities or are you considering undertaking one of those activities? If so, ensure you understand the requirements of the permissions triggers and any exemptions which apply and apply to the EPA for a permission within the prescribed timeframes, if required.
  
  
• Familiarise yourself with the EPA’s guidance material - if you already hold a licence or are planning to undertake an activity, make sure you have read and applied where relevant the EPA’s guidance material such as the Permissions scheme – draft policy Publication 1799.1, the EPA’s Guidance on Operating licences Publication 1850.1 and the Changes to permissions in the waste and resource recovery sector Publication 1984 as well as the other publications which are being progressively released by the EPA.
  
  
• Consider whether engagement with EPA is required – existing licence holders should already have been contacted by the EPA about notices of amendment to licences. Have you considered whether the proposed notice of amendment accurately reflects your current and proposed activities? Do you need to seek clarification on any of the amendments proposed?

Do you have a question, need some advice or a training workshop? Please contact a member of our team.