The Victorian "general environmental duty": insights from recent decisions
What you need to know
- It has been nearly five years since the introduction of the Victorian General Environmental Duty ("GED"). Recent Supreme Court and Victorian Civil and Administrative Tribunal (VCAT) decisions have shed light on what duty holders are required to do, and how the GED has been enforced.
- The Court's decision in EPA v Vista Estate Pty Ltd suggests that duty holders should be cautious about relying on OHS analogies as a guide to complying with the GED.
- The Court's decision in Anderson v PWM (Lyndhurst) Pty Ltd demonstrates the breadth of risks that can enliven the GED – including risks of harm to amenity from psychological distress and/or risks associated with foreseeable future land uses.
- In Barr v Roff, the Court observed that the EPA may be subject to the GED in conducting operational activities, however, eligible persons cannot use section 309 of the Environment Protection Act 2017 (Vic) (EP Act) as a means to compel the EPA to exercise its discretionary regulatory powers.
- VCAT decisions indicate that, in considering whether to grant a planning permit, VCAT may consider the applicant's perceived ability to comply with the GED as a relevant factor.
What you need to do
- As a first port of call, look to EP Act-specific jurisprudence and EPA guidance to understand your GED obligations, rather than OHS law precedents. If unsure, seek legal advice.
- Understand that, to comply with the GED, you must have processes in place to ensure that you are proactively (and regularly) assessing risks of harm from your activities, appropriately mitigating those risks, and keeping clear records of the decisions that you make and the steps that you take.
- Ensure your risk assessments take a sufficiently broad view of potential risks of harm, which consider both potential "physical" risks (e.g. biodiversity impacts, contamination, physical illness), non-physical risks (e.g. impacts on aesthetics and amenity) and even future land uses.
Recap of the General Environment Duty
On 1 July 2021, the GED was introduced as the centrepiece of sweeping reforms to Victoria's environmental laws made under the Environment Protection Act 2017 (Vic) (EP Act).
Modelled on the general duties under the Occupational Health and Safety Act 1985 (Vic) (OHS Act), the GED requires all persons and businesses in Victoria to proactively assess risks of harm to human health or the environment from pollution or waste that arise from their activities, and to minimise those risks, "so far as reasonably practicable".
Corporate entities who fail to comply with the GED risk civil or criminal penalties of up to $2,035,100, with penalties of up to $4,070,200 for aggravated breaches.
Key features of the GED
- Positive and proactive – The GED requires that all people and businesses operating in Victoria take proactive steps to understand and mitigate the risks of harm that their activities pose to human health and the environment.
- Broad and adaptable – The broad and general language of the GED reflects an intention that the duty be capable of applying to a wide range of circumstances and contingencies and be able to accommodate changes in industry and the evolving state of knowledge with respect to environmental risks and their management. The GED also conceptualises relevant "risks of harm" broadly. For example, "human health" encompasses psychological health, “environment” includes the social factor of aesthetics, and "pollution” expressly includes noise and odour.
- Risk, not harm-based – The trigger for the GED is the existence of a “risk of harm” (of any duration or degree). A breach of the GED may occur even if no actual harm eventuates if a duty holder is found to have failed to take reasonably practicable steps to minimise relevant risks of harm from their activities.
- Absolute elimination of risk not required – The GED requires risks to be eliminated or minimised so far as "reasonably practicable". In practice, this requires a proportionate approach to minimising risks of harm, in consideration of the matters set out in section 6 of the EP Act. These matters include the likelihood of the risk eventuating, the degree of potential harm, what the duty holder knows or should reasonably know, and the availability, suitability and cost of measures to minimise the relevant risk.
Learnings from GED case law
In this article, we consider the small but growing body of case law on the GED, to understand what this means for duty holders, including how the duty is being implemented and enforced.
EPA v Vista Estate Pty Ltd [2023] VSC 552
Key takeaway: The Supreme Court has cautioned against drawing direct analogies between OHS duties and the GED.
The Victorian Supreme Court’s decision in EPA v Vista Estate Pty Ltd, somewhat surprisingly, challenges the assumption that entities subject to the GED can rely on occupational health and safety (OHS) case law to better understand how the GED will be interpreted and applied. The Court rejected direct analogies between duties under the EP Act and the OHS regime, highlighting procedural and practical differences. We say somewhat surprisingly, given the GED was modelled on OHS law, and the striking similarities between the drafting of relevant provisions.
The Court's decision sheds doubt on the extent to which duty holders can use OHS decisions as a practical guide to understanding or guiding GED compliance. In practice, EP Act jurisprudence and EPA guidance should therefore be the primary reference points for what duty holders must do to comply with the GED.
Anderson v PWM (Lyndhurst) Pty Ltd [2024] VSC 417
Key takeaways: For the purposes of the GED, it is permissible to consider future land uses when assessing whether an activity poses a relevant risk of harm. Psychological impacts arising from knowledge that premises have been polluted may constitute a "risk of harm" to human health.
In Anderson v PWM (Lyndhurst) Pty Ltd, a neighbouring landowner alleged that methane had migrated from an adjacent landfill operated by Veolia. The plaintiffs claimed that the presence of landfill gas had prevented them from obtaining planning approval for a significant horticultural development of their land.
The Court found Veolia breached both its environmental licence and the GED by failing to take reasonably practicable steps to prevent methane emissions (though the plaintiff's nuisance claim failed). On the facts, these steps included final capping of a cell, optimising the landfill gas extraction system, and preparing and implementing a remediation action plan.
In coming to its decision, the Court found that:
- risk under the GED arises where harm is a “real possibility” or “on the cards,” assessed by reference to what was known at the time and balanced against the cost, time, and trouble of mitigation;
- it is permissible to consider future land uses when assessing if an activity poses a relevant risk of harm, and risks that may materialise in the future can bring activities within the GED;
- adverse impacts on amenity are broad and can include psychological impacts arising from knowledge that premises have been polluted; the risk need not be tangible nor amount to actual harm to human health or the environment; and
- the ability to use and develop land is not, of itself, part of the amenity of a premises.
In terms of what this means in practice, duty holders should account for foreseeable future land uses in the vicinity of their activities and should not discount non-physical impacts where community awareness of contamination could reasonably cause anxiety or distress.
Barr v Roff [2023] VSC 692
Key takeaway: The EPA may be subject to the GED in relation to its operational activities, but section 309 of the EP Act does not empower courts to direct the EPA to exercise its discretionary statutory powers.
In Barr v Roff [2023] VSC 692, the Court considered if section 309 of the EP Act, which allows an eligible person to seek court orders restraining specified conduct or requiring a person to take specific action, could be used to compel the EPA to exercise its clean up and recovery powers.
In seeking orders requiring the exercise of those powers by the EPA to clean up approximately 7,000 m2 of contaminated waste that had been illegally dumped on the plaintiff's site, the plaintiff argued that the EPA's failure to act meant that it had failed to comply with the GED.
In dismissing the claim, the Court found that:
- judicial review is the proper mechanism to test lawfulness of the EPA's regulatory decisions, whereas s 309 is intended to empower eligible persons to take action against alleged polluters or non compliant third parties themselves. It does not enable courts to direct the EPA’s discretionary decision making, as this would improperly subject the merits of the EPA’s decisions to court control; and
- while it is doubtful that the EPA’s regulatory actions are “activities” that trigger the GED, the EPA may be subject to the GED when performing operational tasks (for example, physically handling or transporting waste).
Recent decisions in the Victorian Civil and Administrative Tribunal
Key takeaway: VCAT may consider the likelihood that a permit applicant will be able to comply with the GED when deciding whether to grant a planning permit.
In Daemen v Kingston City Council [2023] VCAT 802, VCAT affirmed the council's decision to refuse a retrospective application for a planning permit to use land for motor repairs. The fact that VCAT was not satisfied that the applicant would be able to meet its obligations under the GED, if the permit were granted, was a factor in the Tribunal's decision.
In Spillane v Moonee Valley City Council [2021] VCAT 1524, VCAT set aside the council's decision to grant a permit for the use of land for a service station and workshop. In doing so, VCAT considered the applicant's "reactive nature" to be contrary to the "proactive" GED, finding that it was not appropriate to grant a permit for a proposed use which relied on infrastructure that was unlikely to meet the requirements of the EP Act.
Other observations: trends in enforcement
The EPA has a range of enforcement tools under the EP Act, from powers to issue notices, to powers to bring civil or criminal proceedings for breach of the GED. The EPA's Compliance and Enforcement Policy states that it aims to take a proportionate and graduated approach to non-compliance, taking into account the level of risk, seriousness of the offence, culpability of the offender and other relevant criteria.
What this means in practice is that a breach of the GED will not always result in court proceedings. Further, where proceedings are brought, these may be settled out of court or resolved by consent (obviating the need for a substantive judgment), with the effect that authority on the interpretation and application of the GED is still limited.
For example:
- In EPA v Quaker Houghton Australia Pty Ltd [2025] VSC 481, the Court made consent orders on the basis of Quaker's admission that it had breached the GED by failing to install an isolation valve to prevent liquids (including oleic acid products) from entering the stormwater system, ordering Quaker to pay $21,054 in compensation by way of cleanup costs and a penalty of $260,000, and to publish an adverse publicity notice in a local newspaper.
- In EPA v Veolia Recycling and Recovery Pty Ltd [2025] VSC 696, being civil proceedings brought by the EPA, Veolia agreed to admit that it had contravened the GED by failing to, so far as reasonably practicable, minimise the risk of an adverse effect on the amenity of land in the vicinity of its premises from landfill gas emissions. Veolia was ordered to pay $1,000,000 into a restorative project account, publish an adverse publicity notice, and undertake additional landfill gas monitoring and reporting to EPA.
Other author: Isabelle Keen, Lawyer.
