Key Takeouts
The case of Anderson & Ors v PWM (Lyndhurst) Pty Ltd & Veolia Recycling & Recovery Pty Ltd considers the general environmental duty provision in Section 25 of the Environment Protection Act 2017 (Vic).
The Court concluded that Veolia had breached its environmental licence and also the general environmental duty by failing to take reasonably practicable measures to prevent emissions of methane gas.
It is not necessary for person claiming relief for breach of the general environmental duty to prove that the breach caused actual harm. The decision confirms that “The duty created by the GED is risk based, not outcome based.”
On 18 June 2024, it became an offence for a person in Queensland to contravene the general environmental duty (GED) set out in Section 319(1) of the Environmental Protection Act 1994 (Qld).
One month after this provision took effect, the Victorian Supreme Court handed down its reasons in Anderson & Ors v PWM (Lyndhurst) Pty Ltd & Veolia Recycling & Recovery Pty Ltd1, considering the GED provision in Section 25 of the Environment Protection Act 2017 (Vic).
As noted in an earlier paper, Victoria was the first Australian jurisdiction to introduce a GED which is criminally enforceable.
The Victorian and Queensland GED is set out below. Given the similarities, the case is helpful guidance on the application of the GED and when it might be contravened. It is however noted that there are subtle differences in the wording and, of course, each case will turn on its own unique facts and circumstances.
| EP Act (Vic) | EP Act (Qld) |
|---|---|
| 25 General environmental duty: (1) A person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste must minimise those risks, so far as reasonably practicable. | 319 General environmental duty: (1) A person must not carry out any activity that causes, or is likely to cause, environmental harm unless the person takes all reasonably practicable measures to prevent or minimise the harm (the general environmental duty). |
| Notes: See section 6 in relation to the concept of minimising risks of harm to human health and the environment. Section 314 provides that subsection (1) is a civil penalty provision. The penalty for contravention of this civil penalty provision is set out in the table in section 314. See also 314(3). | Note: See section 24(3) (Effect of Act on other rights, civil remedies etc.). |
It is important to note that the case was a civil proceeding seeking relief under Section 309 of the Victorian EP Act. Section 309 allows an eligible person to seek orders from a Court restraining a person from engaging in specified conduct or requiring a person to take any specific action on terms considered appropriate. Section 505 of the Qld EP Act2 is in similar terms. It was not the regulator prosecuting a breach of the GED as a criminal offence.
Background
The proceeding was commenced by plaintiffs who owned land sharing the eastern boundary of a landfill operated by Veolia. The plaintiffs contended that as a result of faults in the design and construction of landfill waste cells adjacent to the eastern boundary, methane gas had migrated via subsurface geology from Veolia’s land to their land. It was not in dispute that landfill gas had migrated from Veolia’s land onto the plaintiff’s land.
The plaintiffs claimed relief was due to them on the following bases:
- Veolia had breached their licence to operate under the EP Act by failing to take all practicable measures to prevent emissions from exceeding the prescribed levels at the landfill boundary.
- Veolia had breached the GED; and
- Nuisance.
The decision
The Court dismissed the plaintiffs’ claim in nuisance on the basis that the evidence established that no nuisance was occurring based on the existing use of the land. An interference with a potential future use of land was considered not to constitute an actionable nuisance.4
The Court concluded that Veolia had breached its licence and also the GED by failing to take three reasonably practicable measures to prevent emissions of methane gas. The identified measures were: constructing a final cap on one of the cells, ensuring that the landfill gas extraction system operated at optimal efficiency and preparation and implementation of a remediation action plan.
Relevantly, the aspects of the GED Veolia were found to have breached were in the following terms (for ease of comparison, the Queensland EP Act provisions are alongside):
| EP Act (Vic) | EP Act (Qld) |
|---|---|
| (4): Without limiting sub-section (1), a person who is conducting a business or an undertaking contravenes that subsection if the person fails to do any of the following in the course of conducting the business or the undertaking, so far as reasonably practicable. | (5): Also, in deciding whether the general environmental duty is contravened regard may be had to whether a person fails, for example, to do any of the following in carrying out an activity. |
| (a): Use and maintain plant, equipment, processes and systems in a manner that minimises risks of harm to human health and the environment from pollution and waste; | (a): Install, use and maintain plant, equipment, processes or systems in a way that minimises risks of environmental harm that may arise in connection with the activity; |
| (b): Use and maintain systems for identification, assessment and control of risks of harm to human health and the environment from pollution and waste that may arise in connection with the activity, and for the evaluation of the effectiveness of controls; | (b): Use and maintain systems for the identification, assessment and control of risks of environmental harm that may arise in connection with the activity, and for the evaluation of the effectiveness of controls; |
Having regard to the Victorian formulation of the GED, the Court considered Veolia to be subject to the GED because Veolia’s possession and storage of waste may give rise to a risk of:
- harm to human health if at any point in time in the future there is a building on the plaintiffs’ land which could be a receptor for method gas and carbon dioxide.
- an adverse effect on vegetation on the plaintiffs’ land if at any time in the future the plaintiffs introduce vegetation which is intolerant to methane gas.
- An adverse effect on the amenity of the plaintiffs’ premises that is likely to unreasonably interfere with the enjoyment of the premises.
Veolia was found to have breached the GED by failing so far as reasonably practicable to minimise the above risks by:
- Failing to use and maintain its gas extraction system in a manner that minimised risk of harm to human health and the environment from pollution and waste; and
- By failing to prepare and implement a remediation action plan.
Key Implications
1. The case indicates that in order to do so it is not necessary for those persons to prove that the breach of the GED caused actual harm. At paragraphs 154 the Court said:
“154…The duty created by the GED is risk based, not outcome based. The duty is breached where a person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste fails to eliminate those risks so far as reasonably practicable. Veolia’s contention that the plaintiffs do not have standing because they have failed to establish that they have suffered actual harm reflects a misunderstanding of the risk based nature of the duty created by s25(1) of the Act.”
The plaintiffs’ interest in reducing the level of pollution of their land from Veolia’s site was sufficient to constitute a special interest in the subject matter of the proceeding.
2. While the potential future uses of the plaintiffs’ land were not relevant to the nuisance claim, the Court considered that it was permissible to have regard to potential future uses of the plaintiffs’ land for the purpose of determining whether Veolia is subject to the GED. As such, it may be possible to breach the GED by failing to minimise, so far as reasonably practicable, the risk of human harm if buildings are erected on the land at some time in the future.
The Court nevertheless considered that Veolia was subject to the GED based on the plaintiffs’ current use the land by virtue of Veolia storing waste that may give rise to a risk of an adverse effect on the amenity of the plaintiffs’ premises that unreasonably interferes with the plaintiffs’ enjoyment of the premises.4
3. An interesting argument was run by Veolia in defending the allegations regarding breach of the licence. It was to the effect that the failure to prepare and implement a remediation action plan was not a breach because it is a remedial rather than a preventative measure. The Court accepted that ‘remediation’ and ‘prevention’ were different things, however found that it did not follow that once levels had been exceeded, ‘the horse had bolted’ and there was no requirement under the licence for Veolia to prepare and implement a remediation action plan.5
4. During the course of Veolia’s closing submissions, an undertaking was offered to the Court to the effect that regardless of the outcome of the proceeding, Veolia would conduct a landfill gas risk assessment, implement any recommendations which arise from that assessment and would design and progress construction of the final cap for cells 12 and 13.
While the Court considered that it had power to make orders in terms of the undertaking (having concluded that Veolia had breached its licence and the GED), the form of undertaking proffered was flawed because it purported to operate irrespective of whether the Court made the findings of breach.
5. Ultimately the Court made orders:
- detailing the nature of each breach;
- requiring Veolia to prepare, have verified by an environmental auditor, and implement a landfill gas remediation action plan; and
- provide the design (and progress construction of) the final cap for cells 12 and 13.
Given that there was uncertainty as to the measures that might be identified by the auditor (and also timeframes for implementation of the measures), the Court did not consider it appropriate to make final orders disposing of the proceeding as part of these reasons. The proceeding was adjourned to a later date after material had been filed which exhibited the remediation action plan with a view to the Court making orders at that time to give effect to the measures identified by the audited remediation action plan.
1 [2024] VSC 417
2 Such a proceeding can be bought in Queensland by someone whose interests are affected by the subject matter of the proceeding. In Victoria, the meaning of ‘eligible person’ for their EP Act is a person whose interests are affected by the contravention or non-compliance in relation to which the application is made.
3 See paragraph 5
4 Paragraph 313, noting that in considering the concept of amenity, the Court referred to the Queensland case of Broad v Brisbane City Council
5 See paragraph 281