Breach of the general environmental duty: The first substantive case under s 25 of the Environment Protection Act 2017 (Vic)

On 18 July 2024, the Victorian Supreme Court found that the defendant in this case had breached the conditions of its landfill operating licence and the general environmental duty (GED). This is the first substantive decision under the new GED provision in the Environment Protection Act 2017 (Vic) (Act) since the Act came into effect on 1 July 2021.^[1]

This decision is therefore one of the first to provide guidance on the application of the GED and indicates that the Courts are likely to take a broad approach to assessing the risks of harm and practicable steps to mitigate those risks under s 25 of the Act.

What you need to know

• The parties agreed that landfill gas was causing pollution but the question was whether there was harm. The Court confirmed the GED is a ‘deliberately undemanding test’.  A duty holder will need to take account of future potential uses on surrounding land when assessing risk of harm.   You don’t wait for that future use to exist to assess risk.  The GED is ‘not constrained by the status quo’.
• Harm includes interference with enjoyment of a premises. For example, if there has been an adverse psychological impact on a landowner as a result of risk of an adverse effect on the amenity of a premises, this may be a breach of the GED where it is unreasonable interference. 
• It’s not just the EPA who can successfully bring actions under the EP Act. A neighbour will have standing to bring a claim where there is pollution as it has an interest in minimising pollution of its land.
• Orders for substantive remedial works were made by the Court but no damages or compensation for the plaintiff.
• GED’s are now in place in many Australian jurisdictions in addition to Victoria. This decision highlights the importance of ensuring compliance with EPA permissions and that offsite emissions (odour, noise, pollution) or migration of contamination can give rise to an actionable breach of the GED.
• The decision is problematic for existing and former landfills many of which will be generating methane gas which is migrating beyond the boundary of the premises. Under the Landfill BPEM and EPA Publication 1642 (Assessment of planning proposals within the buffer of a landfill), risk assessments (and in some cases audits) are required for planning decisions on new uses and development with the buffers of existing and former landfills. If planning applications are refused or additional costs are incurred as a consequence of migrating landfill gases, the decision provides additional ground for seeking Court orders to control those off-site emissions and, depending on the case, potentially compensation.

The owners of the land neighbouring Veolia’s Hallam Road landfill in Hampton Park brought the case against Veolia and its subsidiary PWM (Lyndhurst) Pty Ltd (PWM) after the neighbours’ application for a planning permit to install greenhouses on their land was refused due to landfill gas migrating in the subsurface from Veolia’s adjacent landfill.

While the Environment Protection Authority (EPA) was not a party to this proceeding, the EPA has since filed separate proceedings against Veolia on 29 August 2024 in relation to the same site, following several community complaints of odour emitting from the landfill. Those proceedings will similarly consider whether Veolia breached the conditions of its licence and the GED.

The neighbours claimed that:

• Veolia breached clause 5 of its landfill operating licence by failing to take all practicable measures to prevent emissions of landfill gas in the subsurface from exceeding the limits prescribed in the licence (the breach of licence claim);
• Veolia breached the GED under s 25(1) of the Act by failing to minimise the risks of harm to human health or the environment so far as reasonably practicable, while engaging in an activity that may give rise to those risks (the GED claim); and
• Veolia is liable in nuisance because the migration of landfill gas is a substantial interference with the use and enjoyment of their land, including because the migration of landfill gas onto their land prevented them from obtaining approval to develop their land for horticulture (the nuisance claim).

The neighbours were successful in the breach of licence claim and the GED claim; however the Court dismissed the nuisance claim because it was not satisfied that, excluding the landfill gas emissions, the permit would have been granted. In addition, the Court found that an interference with a potential future use of land does not constitute a nuisance.  It was accepted there was no nuisance in relation to the existing low level agricultural use of the plaintiff’s land.

As a result, the neighbours were not entitled to damages or compensation, however the Court granted injunctions and orders under s 309 of the Act requiring the landfill operator to implement measures to address the gas emissions and migration including through engaging auditors to prepare a remediation action plan which will be implemented, and to ‘forthwith’ provide the EPA with final cap design for two of the landfill cells, to be constructed once approved by the EPA.

• Explosions or fires in the presence of receptors including any buildings.[2] The Court stated that the fact that there were no buildings or permits for buildings on the neighbouring land was not relevant to the risk of harm.
• Harm to vegetation. Various plant species are intolerant to methane gas; therefore vegetation may be adversely affected by emissions of landfill gas and this was even though there had been no vegetation damage to date.
• Harm to the amenity of the neighbours’ land. The Court found that the neighbours’ knowledge that their land had been polluted by emissions will unreasonably interfere with their enjoyment of the land. Interestingly the plaintiffs had also argued that failure to obtain a planning permit for its greenhouse development was an adverse amenity impact and a breach of the GED.  However the Court rejected this on the basis that there is no authority that the ability to use and develop land is, of itself, part of the amenity of a premises.

The Court determined that, based on the facts and expert evidence, Veolia failed to take steps which were reasonably practicable to mitigate the risks of harm in each of these categories.

Deemed to have breached the GED by failing to maintain systems

The Court found that assessing risk would normally include a consideration of the likelihood of the risks eventuating (in this case, assessing whether the proposed greenhouses which would be the gas receptors would ever be built).    However, in some cases a person conducting an undertaking will be deemed to have breached the GED without that consideration.  Unlike the nuisance claim, under the GED claim, the plaintiffs did not have to prove the likelihood of their future proposed use coming into existence.    Veolia breached the deeming provisions of s 25(4)(a) and (b) because it:

• did not operate its landfill gas extraction system at optimal capacity to minimise the quantity of emissions from the landfill, in breach of s 24(a); and
• did not prepare or implement a Remediation Action Plan (RAP) to identify, assess, and control risks of harm, in breach of s 24(b).

Breach of licence claim

The Court can make orders in relation to a breach of licence, and the Court found that Veolia failed to comply with a licence condition requiring Veolia to take all practicable measures to prevent emissions of landfill gas from exceeding the levels specified in the EPA’s Publication Best Practice Environmental Management Siting, Design, Operation and Rehabilitation of Landfills. 

What is a ‘practicable measure’?

The Court considered the meaning of ‘practicable’ to assess the breach of licence claim and the GED claim. It held that a practicable measure is one that is ‘feasible or capable of being put into practice’, although the fact a measure is theoretically capable of being implemented does not mean it is practicable in the circumstances.

The Court identified three practicable measures Veolia could have undertaken to prevent the landfill gas emissions exceeding prescribed levels:

• Installing a final cap on landfill cell 12 and 13;
• Implementing a RAP; and
• Improving the operating efficiency of its gas extraction system.

Veolia had several years of audit reports which included recommendations for improving its gas extraction system.

The plaintiffs had argued Veolia should also have considered a vent curtain system, however the Court found that was not a practicable measure and failing to do this was not a breach of the licence. 

Standing

Veolia argued that the neighbours did not have standing to bring a claim under s 309 because they had not suffered harm and therefore their interests were not affected. A person is eligible to bring a claim under s 309 if - a) their interests are affected by the contravention of the Act, or b) they have the leave of the court, which is commonly granted where a case is of public interest.

The Court dismissed Veolia’s argument, stating that if the relief sought by the neighbours was granted, it would reduce the emissions migrating onto their land. Therefore, the neighbours’ interests were affected by the contravention and the outcome of the proceeding.

Conclusion

This decision is one of the first to provide guidance on the application of the GED and indicates that the Courts are likely to take a broad approach to assessing the risks of harm and practicable steps to mitigate those risks under s 25 of the Act.

Failing to comply with the conditions of a licence may also form the basis of a claim of breach of the GED, and ‘harm’ is likely to be broadly interpreted, taking into account future possible uses of land and potential adverse effects even where those effects have not materialised.

The decision highlights the importance of ensuring compliance with EPA permissions and that offsite emissions (odour, noise, pollution) or migration of contamination could give rise to an actionable breach of the GED. This could not only result in compliance and enforcement action by the EPA, but also legal proceedings in the Court under the wide public standing provision of the new Act seeking remedial orders and compensation for damage.