Summary
The Supreme Court of Victoria has ruled that works required by an Environmental Protection Authority (EPA) issued clean-up notice do not require a planning permit. However, incidental works that occur as a result of a notice may still trigger the need for a permit.
LPG Laverton Property No 5 Pty Ltd v Australian Vinyls Corporation Pty Ltd and Wyndham City Council1 was an appeal from the Victorian Civil and Administrative Tribunal (the Tribunal) that concerned how a clean-up notice can result in the Environmental Protection Act 1970 (Vic) (EP Act) ousting provisions of the Planning and Environment Act 1987 (Vic) (PE Act). The Court found that this can occur in certain circumstances and is subject to the wording of the notice.
Background
In 2016 the Australian Vinyls Corporation (AVC) ceased their manufacturing operations and began decommissioning their Laverton plant. During this process they discovered that they had contaminated parts of the land and groundwater.2
As a result of the contamination, the EPA issued the AVC with a notice pursuant to s 62A of the EP Act. Following receipt of the notice, AVC applied to the Wyndham City Council (Council) for a permit to construct an environmental bund to consolidate the contaminated soil.3
LPG Laverton (LPG) owned adjoining land near the proposed bund location and objected to the proposed works. Despite this objection, the Council granted the permit for construction. LPG then applied to the Tribunal under the PE Act for a review of the Council’s decision.
Tribunal’s decision
When considering whether or not it had jurisdiction to hear the review, the Tribunal found that s 62A(1B) of the EP Act operated so as not to require a planning permit for works to be undertaken for the purposes of complying with a clean-up notice.4
The Tribunal found that if a permit was refused, then works to clean up or remediate a site could not lawfully be undertaken under the legislative regime, something that would be contrary to the purposes of both the EP Act and the PE Act.5
Supreme Court appeal
LPG appealed6 to the Supreme Court on the grounds that the Tribunal erred in law in its interpretation of the EP Act and that the Tribunal had misconstrued the clean-up notice.7
When considering s 62A(1B), Justice Garde noted that it was of significant importance as it allowed a clean-up notice to override the PE Act in some circumstances. At [55], his Honour stated:
“Section 62A(1B) says that clean up and ongoing management measures to be completed and performed as specified in the notice are exempt from the requirements in the PE Act and the Building Act. It does not say that all works that may need to be performed on contaminated land following the service of a notice are exempted from the PE Act and the Building Act.”
His Honour later stated at [65] that:
“The notice only specified reporting requirements, which do not attract the second part of s 62A(1B) or operate to oust planning and building controls.”
Against that background, the Court’s ruling means that a clean-up notice only ousts the operation of the PE Act to the extent that it directs the performance of specified measures which require a permit be given under the planning rules.8 Because the permit concerned works that were not specified in the clean-up notice, the Tribunal had jurisdiction to review them.
Implications
The Court’s decision results in the need for Councils and recipients of clean-up notices to understand exactly what works are required by a notice and then identify what other or consequential works are required and whether they need a planning permit.9
HWL Ebsworth Lawyers has expertise in advising on matters regarding contaminated land and the responsibilities of councils, developers and recipients of clean-up notices.
If you would like to discuss how this decision affects a proposed development, or any other matter, please do not hesitate to contact us.
This article was written by James Lofting, Partner and Frank Lawrence, Law Graduate.
1 (LPG v AVC) [2020] VSC 689
2 Ibid at [2]
3 Ibid at [5].
4 LPG v AVC [2020] VSC 689 at [1].
5 LPG Laverton Property No 5 Pty Ltd v Wyndham City Council [2019] 1997 (Bisucci DP) (Tribunal’s reasons) at [44]-[45], cited at [36] of LPG v AVC [2020] VSC 689.
6 Parties to a proceeding in the Tribunal may seek leave to appeal to the Supreme Court on a question of law from an order of the Tribunal. Under s 148(2) of the VCAT Act 1998 (Vic), leave to appeal can be granted if the Court is satisfied that the appeal has a real prospect of success.
7 LPG v AVC [2020] VSC 689 at [11]; [45]-[46].
8 Ibid at [83].
9 Ibid at [82].
