VCAT reinforces EPA's broad discretion on remedial notices recipients
What you need to know
- Two recent Victorian Civil and Administrative Tribunal (VCAT) decisions confirm the EPA can issue clean up notices to the polluter, current occupier or current owner of land. The recipient need not have knowledge of or responsibility for the waste or contamination (Moorabool SC v Environment Protection Authority [2025] VCAT 631 and ESI Projects Pty Ltd v Environment Protection Authority [2025] VCAT 837).
- Victoria has no hierarchy of preferred recipients for remedial notices. The EPA's discretion reflects the Environment Protection Act 2017 (Vic)'s core purpose: to minimise harm to human health and the environment.
- Recipients can recover compliance costs from anyone who caused or contributed to the waste or contamination.
What you need to do
- These decisions show the EPA targets those best placed to remediate contamination. This is usually the current owner or occupier, not the original polluter.
- Owners and occupiers should: manage site operations to prevent contamination; conduct proper due diligence when purchasing or leasing land; secure sites to prevent illegal dumping; and ensure imported fill or materials are not contaminated.
Recap: EPA's power to issue Environmental Action Notices
Section 274 of the Environment Protection Act 2017 (Vic) (EP Act) empowers the EPA to issue environmental action notices (EANs) when it reasonably believes any of the following circumstances exist:
- land is or may be contaminated;
- a pollution incident has occurred or is occurring that has caused or is likely to cause, a risk of harm to human health or the environment;
- industrial waste is at a place or premises unlawfully;
- any other circumstances exist arising from pollution or the depositing, storage or handling of waste that have caused or are likely to cause a risk of harm to human health or the environment;
- a person has failed to comply with an investigation notice.
The EPA can attach any condition it considers appropriate to an EAN. It can require the recipient to clean up, remove waste to a lawful facility, or stop accepting industrial waste.
Section 274(2) allows the EPA to issue the notice to any to the following:
- the person who the EPA reasonably believes caused or permitted the circumstances;
- the current owner or occupier of the land;
- the owner or occupier at the time the circumstances arose.
Victoria has no hierarchy of preferred recipients, unlike some other Australian jurisdictions.
However, the EP Act allows anyone who complies with an EAN to recover costs from those who caused or contributed to the circumstances that led to the issue of the EAN.
Moorabool SC v Environment Protection Authority [2025] VCAT 631
Moorabool Shire Council sought a stay of an EAN issued to it in June 2025. The EAN required the Council to remove about 1,000 dissolved acetylene cylinders. These sat in pallets on two trailers parked on nature strips in Merrimu. The Council controlled and managed these nature strips. The Council denied dumping the waste and started VCAT proceedings to review the EAN. It also applied for a stay because a final hearing would not occur before the compliance deadline.
To grant the stay, VCAT needed to find a "serious issue to be tried". The Council argued the notice was profoundly unfair. It said the EPA should have issued the EAN to the original polluter or cleaned up the pollution itself. The Council wanted VCAT to set aside the EAN.
The EPA told VCAT that the polluter had gone bankrupt and had ignored prior directions.
VCAT refused the stay. It found no arguable serious question to try. The EPA's power arose from the presence of industrial waste on the land. The regime does not require the recipient to have knowledge, fault or other responsibility.
VCAT also clarified the limits of its jurisdiction:
- VCAT cannot direct the EPA to clean up waste itself or facilitate such a clean up;
- VCAT cannot join another respondent or direct the EPA to issue a notice to someone else;
- VCAT cannot decide whether the EPA breached its duties by failing to prevent the waste deposit.
VCAT accepted that the Council faced an "invidious position". It faced EANs simply because it occupied and controlled public land and roads. But the scheme includes the option to recover costs from the polluter. VCAT noted the Council could not prove this option was unavailable, despite the polluter's bankruptcy.
The parties agreed the waste harmed the environment. Traffic collision risk was low but potentially catastrophic. VCAT accepted the EPA's argument that leaving the waste posed a serious and unacceptable risk to human health and the environment.
ESI Projects Pty Ltd v Environment Protection Authority [2025] VCAT 837
VCAT in ESI Projects adopted the Moorabool SC approach.
ESI Projects Limited Pty Ltd (ESI) occupied and managed land in Frankston. ESI had agreed with the premises owner to import suitable fill material. Some imported fill contained asbestos. ESI did not know this at the time. The EPA issued an EAN directing ESI to remove the contaminated soil.
ESI sought VCAT review. It argued it did not cause or permit the contaminated soil import and had told the EPA who was responsible.
ESI said Renex Op Co Pty Ltd (Renex) deposited the contaminated soil and represented it as clean fill. ESI argued it should have been able to rely on Renex's testing, which Renex conducted under its own EPA licence. ESI claimed that forcing it to fix Renex's failure undermines the licence conditions imposed on Renex.
The parties agreed contaminated soil sat at the premises unlawfully. The EPA therefore had power to issue an EAN. The EPA argued it chose ESI correctly because ESI, as occupier, was best placed to remove the contaminated soil.
VCAT agreed with Moorabool SC. The power to issue an EAN arises from the presence of waste (here, contaminated soil) on land. The regime requires no knowledge, fault or other responsibility from the recipient.
VCAT emphasised the EP Act's paramount purpose: to minimise harm to human health and the environment. To achieve this, the EP Act lets anyone who complies with an EAN recover costs from those responsible for or contributing to the problem.
VCAT held the EPA's decision was preferable. The notice directed action to the person controlling the premises and avoided delays from inquiries to find who actually deposited the contaminated soil.
VCAT addressed ESI's insolvency claim. ESI argued it would become insolvent if VCAT affirmed the notice. VCAT noted ESI did not provide enough evidence of its financial resources. This suggests a recipient might argue an EAN should be set aside if compliance would cause insolvency and other recipients exist. But such an argument would contradict these two recent decisions.
Key insights
These decisions confirm the EPA's broad discretion to issue clean up or remediation notices to the polluter, current occupier or current owner of land. The EPA need not select a recipient based on who caused the pollution. It can prioritise protecting human health and the environment over assigning blame.
VCAT considers the EAN regime properly balanced. Recipients can recover compliance costs from anyone who caused or contributed to the contamination.
These decisions highlight the importance of:
- managing activities on land to prevent contamination;
- conducting proper due diligence when purchasing or leasing land;
- protecting sites from illegal dumping;
- ensuring fill from third parties is not contaminated.
