VCAT reinforces EPA's broad discretion on remedial notice 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, unlike some other jurisdictions. The EPA's discretion to issue remedial notices reflects the Environment Protection Act 2017 (Vic)'s paramount purpose: to minimise the risk of harm to human health and the environment.
- Remedial notice recipients can recover compliance costs from anyone who caused or contributed to the waste or contamination, which balances any "unfairness".
What you need to do
- These decisions show the EPA has discretion to target those best placed to remediate contamination. This is usually the current owner or occupier, not the original polluter of the land.
- Owners and occupiers should: manage site operations to prevent contamination; conduct proper due diligence when purchasing or leasing land to understand whether the land is contaminated in such a way that the EPA may issue a remedial notice; 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 was issued and has failed to comply with a notice to investigate.
The EPA can specify any condition or requirement it thinks fit in an EAN. The EPA can require the recipient take clean up measures, take waste to a premises that can lawfully accept the waste, or cease 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 which are the subject of the relevant notice;
- the current owner or occupier of the land;
- the owner or occupier of the land 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, contained in pallets on two trailers parked on nature strips in Merrimu. The Council controlled and managed these nature strips. The Council claimed it had not dumped the waste and was not the source of the waste, and started VCAT proceedings seeking review of the EAN. The Council also applied for a stay because a final hearing would not occur before the compliance deadline.
To grant the stay, VCAT needed to consider whether there was a "serious question to be tried". The Council argued that issuing the notice to the Council was profoundly unfair. It said the EPA should have issued the EAN to the original polluter or cleaned up the pollution itself. The Council contended that the correct or preferable decision would be to set aside the EAN, and there was a serious question to be tried.
The EPA gave evidence that the polluter had gone bankrupt and had ignored prior directions.
VCAT refused the stay. It found no arguable serious question to be tried. The EPA's power to issue an EAN arose from the fact that industrial waste was located on the land. The regime does not require the EAN recipient to have knowledge, blameworthiness or other responsibility.
VCAT also clarified the limits of its jurisdiction when considering what is correct and preferable:
- 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 deposit of waste.
VCAT accepted that the Council faced an "invidious position". It faced EANs by virtue of its occupation and control of public land and roads. However, an integral part of the scheme includes the option to recover costs from the polluter. VCAT observed the Council could not conclusively demonstrate this option was unavailable, despite the evidence of the polluter's bankruptcy.
There was no dispute that the waste was harmful to the environment. Traffic collision risk was low but potentially catastrophic. VCAT accepted the EPA's argument that leaving the waste on the land posed a serious and unacceptable risk of harm to human health and the environment.
ESI Projects Pty Ltd v Environment Protection Authority [2025] VCAT 837
VCAT in the ESI Projects decision agreed with the approach in the Moorabool SC decision.
ESI Projects Limited Pty Ltd (ESI) occupied and managed land in Frankston. ESI had an agreement 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 on the basis that the EAN should not have been issued to ESI because it did not cause or permit the import of contaminated soil and had provided the EPA with information about 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 argued that forcing it to fix Renex's failure undermines the licence conditions imposed on Renex.
It was not disputed between the parties that contaminated soil was at the premises unlawfully. The EPA therefore had power to issue an EAN. The EPA argued issuing the notice to ESI was the correct and preferable decision because ESI, as occupier, was best placed to remove the contaminated soil.
VCAT agreed with the reasoning in the Moorabool SC decision. The power to issue an EAN arises from the presence of waste (here, contaminated soil) on land. The regime requires no knowledge, blameworthiness or other responsibility on the part of the EAN recipient.
VCAT went on to say that it is the EP Act's paramount purpose to minimise the risk of harm to human health and the environment. To achieve this, the EP Act provides for anyone who complies with an EAN to recover costs from those responsible for or contributing to the need for that action.
VCAT held the EPA's decision to issue the notice to ESI was the preferable decision in all the circumstances. The notice directed action to the person controlling the premises and avoided delays that may occur from inquiries to find who actually deposited the contaminated soil.
VCAT concluded by commenting on a claim by ESI that it would risk insolvency if the notice were affirmed. ESI argued it would become insolvent if VCAT affirmed the notice. VCAT noted ESI did not provide enough evidence of its financial resources to establish that the substance of the notice should not be affirmed. This suggests an EAN recipient might argue an EAN should be set aside if compliance would cause insolvency, and other recipients exist. However, such an argument would require a VCAT decision which is inconsistent the two recent decisions discussed in this article.
Key insights
These decisions confirm the EPA's broad discretion to issue notices requiring clean up or remediation of waste or contamination to the polluter, current occupier or current owner of land. The EPA need not select a preferable recipient based on who caused the pollution. The EPA can prioritise protecting human health and the environment over the blameworthiness or responsibility of the notice recipient.
VCAT considers the EAN regime is appropriately balanced because 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.
