General Environmental Duty

With recent changes in environmental regulations, businesses must effectively navigate the new General Environmental Duty (GED) landscape to minimise their environmental impact. By understanding key points and implementing proactive steps, businesses can avoid penalties and contribute positively to environmental protection and sustainability.

Key Takeaways for Minimising Harm

1. Understanding the General Environmental Duty (GED)

The General Environmental Duty (GED) under the Environment Protection Act 2017 (Vic) mandates that businesses minimise risks of harm to human health and the environment from their activities. This duty is broad and requires proactive measures to prevent environmental harm.

2. Recent Guidance and Compliance Requirements

Recent guidance from the Victorian Government emphasizes the importance of businesses understanding their obligations under the GED. Key points include:

• Risk Assessment: Conduct thorough risk assessments considering both current and future potential uses of surrounding land.
• Proactive Measures: Implement practical steps to mitigate identified risks, including regular monitoring and updating of environmental management plans.

3. First Substantive Case Under the GED

The first substantive case under section 25 of the Environment Protection Act 2017(Vic) highlighted several critical aspects:

• Broad Interpretation of Harm: The Victorian Supreme Court took a broad approach in assessing harm, including psychological impacts and interference with the enjoyment of premises.
• Potential Harm: There is no longer a need to provide evidence of actual harm; potential harm is now just as liable to constitute a breach.
• Duty Holder Responsibilities: Duty holders must consider future land uses when assessing risks and cannot rely on the status quo.
• Legal Standing: Both the EPA and affected neighbours can bring actions under the GED, emphasising the need for businesses to maintain good environmental practices to avoid litigation.

4. VCAT Clarifications on EPA Powers

The Victorian Civil and Administrative Tribunal (VCAT) provided clarity on the scope of the EPA Victoria’s powers:

• Reasonable Practicability: The EPA’s powers to impose license conditions are limited to what is reasonably practicable to reduce risks of harm. Absolute elimination of risk is not required.
• Compliance Encouragement: The EPA can impose conditions to encourage better compliance, but these must be practical and directly related to reducing harm.
• License Amendments: Amendments to operating licenses must align with the EPA’s objectives and cannot be used arbitrarily.

5. Penalties for Non-Compliance

Non-compliance with the General Environmental Duty (GED) under the Environment Protection Act 2017 (Vic) can result in significant penalties designed to enforce compliance and ensure businesses take their environmental responsibilities seriously. Key penalties include:

• Civil Penalties:

o   Individuals: Up to $363,480

o   Corporations: Up to $1,817,400

• Criminal Penalties: Non-compliance in a business context can be considered an indictable offense, leading to severe criminal penalties.

6. Additional Consequences

• Legal Actions: Both the Environment Protection Authority (EPA) and affected individuals (such as neighbours) can bring legal actions against non-compliant businesses.
• Reputational Damage: Beyond financial penalties, businesses may suffer reputational harm, impacting customer trust and business operations.

Key Points to Avoid Penalties

Effective navigation of the new GED landscape can assist businesses to remain complaint and contribute to a sustainable future. Risk-based rather than action-based environmental management safeguards the avoidance of penalties. To achieve this, businesses should:

• Conduct Regular Risk Assessments: Identify and mitigate potential environmental risks proactively.
• Conduct Regular Environmental Audits: Develop, implement, review and maintain environmental management plans to ensure they address all potential risks.
• Stay Informed: Keep abreast of the regulations and EPA guidance to ensure ongoing GED compliance.
• Engage with Stakeholders: Maintain open communication with the EPA and local communities to address any concerns promptly and demonstrate proactive environmental stewardship.
• Implement Best Practices: Follow industry guidelines and engage consultants if necessary to ensure compliance with the GED.

References

1. Baker McKenzie - Recent Guidance on the General Environmental Duty
2. KWM - Breach of the General Environmental Duty: The First Substantive Case
3. KWM - VCAT Clarifies the Scope of EPA Victoria’s Powers
4. VGSO - The General Environmental Duty under Victoria's new environmental regulatory regime
5. Corrs Chambers Westgarth - Victoria's new environmental protection reforms