Q.01

Under Victoria's Environment Protection Act 2017, when does a site need an environmental audit (e.g. Environmental Audit Overlay, EPA notices, change to sensitive use), who can conduct it (EPA-appointed environmental auditors), and what does an environmental audit statement and report mean for the site's use?

Under the Environment Protection Act 2017, a Victorian site needs an environmental audit when the planning system requires one before a more sensitive use (most often through an Environmental Audit Overlay) or when EPA requires one, mainly through notices about contamination, pollution or waste. Only EPA-appointed environmental auditors can do the audit. The environmental audit statement then sets the land uses the site is, or is not, suitable for, and the owner or occupier must use the site in line with its recommendations.

Approach: The legislation and planning provisions aren't in the datasets I can search, which only hold EPA Victoria's Priority Sites Register. This answer is based on official EPA Victoria, Planning Victoria and council-hosted planning scheme pages, read through search snippets rather than the full text of the Act.

1. When an audit is needed

The audit types under the 2017 Act

  • Land suitability audits: the most common type. They are used when land is proposed for a new use and may be contaminated, or when it is already covered by an Environmental Audit Overlay.
  • Risk of harm from an activity audits: for sites with EPA permissions or licences.
  • Risk of harm from contaminated land, pollution or waste audits: mostly linked to EPA notices requiring clean-up of pollution or waste.

Environmental Audit Overlay (planning schemes, clause 45.03)

  • Before one of these uses or works starts, one of four documents must have been issued:
    • Uses covered: a sensitive use (residential use, child care centre, kindergarten, pre-school centre or primary school, even if ancillary to another use), a children's playground or a secondary school.
    • Works covered: buildings and works associated with those uses.
    • The four documents:
      • a preliminary risk screen assessment (PRSA) statement under the 2017 Act saying no audit is required;
      • an environmental audit statement saying the land is suitable;
      • a legacy certificate of environmental audit; or
      • a legacy statement of environmental audit saying the land is suitable.
  • The overlay doesn't require a full audit for buildings and works associated with an existing sensitive use if an EPA-appointed auditor has issued a PRSA statement saying no audit is required.

Potentially contaminated land without an overlay

  • Planning Practice Note 30 says that where contamination potential is high or medium and a sensitive use is proposed, the recommended approach is an environmental audit or a PRSA.
  • Where potential is high but a non-sensitive use is proposed, the authority may ask for a preliminary site investigation first. That helps decide whether an audit is warranted.
  • Ministerial Direction No. 1 (rezoning to allow a sensitive use, children's playground or secondary school):
    • The planning authority must satisfy itself that the land is suitable.
    • It is preferred that the audit requirement is met before the amendment.
    • This may be impractical in some cases, for example large strategic rezonings, multi-owner areas or sites that are unsafe to sample.

The PRSA as a first step

  • A PRSA is mostly a desktop assessment, sometimes with limited sampling, and must be done by an EPA-appointed auditor.
  • It assesses how likely contamination is, decides whether an audit is needed and, if so, recommends its scope.
  • Possible outcomes:
    • Contamination is unlikely, so no audit is needed.
    • Contamination is likely, but no audit is needed because the proposed use carries no risk of harm. The duty to manage contaminated land may still apply.
  • Whoever manages or controls a site with a PRSA statement must give a copy to anyone who intends to take over management or control.

EPA notices

  • EPA can issue an environmental action notice under section 274.
  • The audit pathway described for "risk of harm from contaminated land, pollution or waste" audits is mostly tied to notices about cleaning up pollution or waste.

Separate duty to notify

  • Owners and occupiers must notify EPA as soon as practicable of prescribed notifiable contamination. This applies only when specified substances exceed specified concentrations in specified circumstances.

2. Who can do it

  • Only environmental auditors appointed by EPA under Division 1 of Part 8.3 of the Act.
  • Auditors are independent of EPA and are reassessed for reappointment every 3 years.
  • They are appointed in three categories:
    • contaminated land;
    • industrial facilities (including wind energy facilities and landfills);
    • natural resources.
  • Independence rules: an auditor must not have a conflict of interest in the site or a stakeholder, or a financial interest in the site. They also must not have assessed the site and commented on its suitability before auditing it, unless it is a repeat audit of an operational site such as a landfill.
  • Their functions include doing PRSAs and audits and preparing PRSA statements and reports and environmental audit statements and reports.

3. What the statement and report mean for the site

  • What the statement contains:
    • the audit scope;
    • the use or proposed use;
    • the auditor's assumptions;
    • any limits on the audit;
    • the results and recommendations.
  • The three possible outcomes:
    • The site is suitable for the stated purposes.
    • It is suitable only if the recommendations are followed.
    • It is not suitable for the stated purposes at the time of the statement.
  • Who receives it: the auditor must give the statement and report to EPA within 5 business days of finishing. Copies also go to the person who requested the audit (usually the owner) and to the relevant planning and responsible authority.
  • Effect on use:
    • The owner or occupier must use the site in line with the statement's recommendations.
    • Following them may help meet the general duty to manage contaminated land.
    • Under the overlay, a statement finding the site suitable is one of the documents that allows the sensitive use or works to proceed.
  • Effect through planning: the responsible authority may need to require the recommendations to be carried out, and they may become planning permit conditions.
  • Older EPA guidance: EPA's guidance from before the 2017 Act said an auditor cannot legally require or prohibit actions through conditions in a statement. Under that approach, those conditions took legal effect only when an authority with jurisdiction imposed them.

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Q.02