You can report breaches of the Environment Protection Act 2017 (the Act) to EPA so we can respond. You can do this using EPA’s pollution reporting form or contacting EPA on 1300 372 842 [1300 EPA VIC]. By contacting EPA, you are helping to protect Victoria’s environment by enabling us to fulfil our duty under the Act.
If your interests are affected by a person’s failure to comply the Act, regulations or a permission issued under the Act, you may be able to take legal action yourself to stop that breach.
If your interests are not affected but you think it is in the public interest for action to be taken, you can formally ask EPA to take action. Depending on the outcome, you can then consider whether to seek further legal action under Part 11.4 of the Act.
These actions are called ‘civil remedies’.
Civil remedies are an important new tool that gives the community broader access to justice.
What civil remedies are
Civil remedies include orders granted by the courts that require a person to comply with the Act. They allow both the EPA and the community to ensure compliance with the Act through the help of the courts. This includes action against a person who is not meeting their general environmental duty, or is not complying with a permission requirement.
If the court is satisfied that the person is not complying with the Act, the court can direct that person to take steps to comply with their obligations. The court can also order compensation for harm you have experienced from the person’s failure to comply with the Act.
Who can seek a civil remedy?
A civil remedy in the courts can be sought by:
- EPA; and
- Any person, including a business, who meets the criteria in the Act.
EPA has a range of tools it can use to directly ensure compliance with the Act. Civil remedies add to these tools by enabling EPA to have a court direct a person to comply with the Act.
Any person can also seek a civil remedy if:
- they can show that their interests are affected in some way by another person’s failure to comply with the Act; or
- their interests are not affected by the person’s failure to comply with the Act , but they are approved by a court to seek a civil remedy where it is in the public interest.
What is needed to satisfy a court to accept a civil remedy
A person whose interests are affected by another person’s failure to comply with the Act has a right under the Act to have their application for a civil remedy to be heard.
Before a court can accept an application for a civil remedy from a person who is not affected by the non-compliance, the court must be satisfied:
- the application for a civil remedy is in the public interest; and
- the person seeking a civil remedy has asked EPA to take compliance or enforcement action against the person they believe is not complying with the Act; and
- EPA has not taken such action within a reasonable time after receiving the person’s request.
To have the court accept such an application, the person will need to explain to the court why their application for a civil remedy is in the public interest.
What a Court understands to be a matter that is in ‘public interest’ depends on the circumstances of each case. A court may consider the scope and purpose of the legislation, including its objects and what matters the law is meant to address. Where the matter involves environment protection, the Court will likely consider whether the alleged breach represents a risk of harm to human health or the environment. Other considerations may include:
- whether there is sufficient evidence to proceed with the case; and
- whether the proceeding could be seen as an abuse of process or be considered frivolous or vexatious.
A person who is not directly affected by a non-compliance will need to provide evidence to the court that they asked EPA to take action in relation to the non-compliance.
What EPA understands as ‘compliance and enforcement action’
Before a person whose interests are not affected by another person’s non-compliance can seek a civil remedy, they must:
- tell EPA about the alleged non-compliance in writing; and
- provide EPA with reasonable time to take either ‘compliance action’ or ‘enforcement action’ in relation to the matter.
A person who wants EPA to take such action can make a request by completing this form. This form can be used by any person, even if they are not affected by non-compliance with the Act.
The Act does not provide a definition of ‘compliance action’ and ‘enforcement action’.
Under the C&E Policy, EPA understands compliance to be:
the adherence to the legal requirements and obligations of the Act. Compliance is an ongoing process, so people and businesses need to regularly assess their risk and seek to improve their methods for eliminating or minimising those risks.
Compliance action EPA could take includes:
- conducting site inspections,
- making enquiries about the issue of concern; or
- providing the person with advice on how to address the issue.
EPA understands ‘enforcement’ to mean:
use of influence, authority and statutory powers under the Act to achieve or compel compliance. ‘Remedy’ is part of enforcement, and is defined as fixing a problem or ‘making good’.
Taking ‘enforcement action’ is when EPA uses its powers, including its remedial and prosecution powers, to ensure a person complies with their obligations under the Act. For example, if a person has not minimised risks of harm from their activities, EPA can issue an improvement notice to compel compliance by that person. The improvement notice will include requirements to ensure the person will be complying with the Act. Enforcement also includes where EPA uses its power to prosecute or seek a civil penalty in the courts.
EPA has adopted a range of policies that set out how it intends to use its powers to take compliance or enforcement action, including:
Together, these policies explain when EPA will decide to use its compliance and enforcement powers and which of its tools it is likely to choose.
EPA must be given a ‘reasonable time’ to take compliance or enforcement action. The Act does not specify what is a reasonable time. It will vary according to the complexity of the issues, the level of investigation EPA needs to undertake to form a view and the circumstances of the matter. Where we can, EPA will inform a person of the outcome of a request to take compliance or enforcement action.
What happens if EPA starts compliance or enforcement action
The purpose of civil remedies is to ensure those who have obligations under the Act, such as duties and permissions, fulfil their obligations.
If your interests are not affected by another person’s alleged non-compliance with the Act, then you must ask EPA in writing to take compliance or enforcement action before a court can accept your civil remedy application.
If EPA decides to take compliance or enforcement action in response to your written request, then you can no longer seek a civil remedy. The court can only consider a civil remedy application if EPA chooses not to take such action.
If your interests have been affected by the person’s alleged non-compliance and EPA also takes compliance or enforcement action against that person, then the court may still hear your application. When considering your application for a civil remedy, the court may need to consider the fairness to the alleged offender and their right to a fair hearing.
If the EPA is taking enforcement action, this may impact upon any civil proceedings you may pursue. The court may choose to pause your application until after EPA’s compliance or enforcement action has been completed, or any associated proceedings are concluded.
How a matter can be resolved without going to court
EPA has a range of powers that enable it to resolve a dispute that relate to the Act. For example, EPA can initiate a conference of interested parties under the Act to bring disagreeing parties together to help resolve a matter as a group.
EPA has adopted a Charter of Consultation that sets out how EPA intends to engage with the community on environment protection matters.
Before you initiate a civil remedy action, EPA may be able to assist the parties to come to an agreement on your dispute.
You can indicate in this form that you would like to request that EPA helps to facilitate a resolution to a dispute.
EPA encourages community and business to engage with each other directly on matters of shared interest in environment protection. Many businesses value their corporate social and environmental responsibilities and have established close working relationships with the communities in which they operate. Direct community and business partnerships can be the most effective way to ensure environmental protection and avoids reliance on the courts.
Where a civil remedy can be sought from
If you have decided that a civil remedy is needed, then there are some choices as to which court you select.
A civil remedy action can be commenced in:
- the Magistrates’ Court;
- the County Court ; or
- the Supreme Court.
Each of these courts has limits on what matters they can hear. For example, the Magistrates’ Court can hear civil disputes up to the value of $100,000. Information on what each of the courts can hear is available at the websites for each court.
Selecting the appropriate court depends on a range of factors, including:
- Limits on what each court can hear and what the value of your claim may be;
- How complex the non-compliance is;
- How urgent the civil remedy is;
- The location of the non-compliance or the person defending the matter and accessibility of the different courts.
Find out more information on the court processes.
What may need to be proved to be granted a civil remedy
Submitting a civil remedy application requires careful preparation.
First, you will need to identify which provision of the Act you think the person is not complying with. This could include where the person holds a permission and is not complying with a condition of that permission.
EPA’s website provides information on the obligations that apply under the Act. These obligations include:
- General environmental duty
- Duty to notify and respond to pollution incidents
- Duties for contaminated land
- Waste duties
- Noise obligations
You can also find the conditions that apply to a permission holder by searching EPA’s public register. If a person is undertaking a permissioned activity without holding a permission, then this can also be a contravention of the Act.
Once you identify the duty or obligation you think the person is not complying with, you will need to gather evidence that shows how they are not complying.
To be successful, you will need to provide the court with sufficient evidence to show the person has failed to comply with the Act. The strength of your evidence needs to show that it is more likely than not that the person has failed to comply with the Act.
The person against whom you are seeking a civil remedy will have the right to respond to your allegation that they are not complying with the Act or a permissions condition. They will be entitled to a fair hearing and can provide the court with their own evidence.
How a person can start the civil remedy process
The EPA cannot provide you with legal or procedural advice about commencing a civil proceeding. If you are considering making an application to a Court, you may wish to seek independent legal advice from:
- Lawyers and law firms that specialise in civil proceedings
- Community legal centres, especially those that aim to support environmental protection and public interest litigation organisations
There are risks of starting civil litigation which should be considered. For example, if the litigation is unsuccessful, the person who commenced civil proceedings may be required to pay costs. A person seeking a civil remedy may be required by the Court to give an undertaking to cover damages experienced by the person against whom they seeking a remedy if it turns out the remedy was not justified.
To commence a civil remedy proceeding, you will need to comply with the rules of the court in which you are seeking your remedy. Fees may be payable as part of commencing a civil remedy process.
Each of the courts has civil procedure rules that must be followed in any civil proceedings. These set out the process you must follow in that court in order for the court to accept your application.
The court websites provide information on:
- Forms and other documents you need to complete to start the process
- The form in which your evidence needs to be provided
- The notification you need to give to the person who you allege is not complying with the Act or permission condition and how it must be served
There are a number of formal steps a person must take when starting a proceeding, including a ‘statement of claim’, an ‘overarching obligations certificate’ and a ‘proper basis certificate’.
For a complete, step-by-step walkthrough of how to commence a civil proceeding in the various courts with relevant forms attached, please see the following resources:
- Magistrates Court: Starting a Civil Matter
- County Court: I Want to Start a Case
- Supreme Court: Start a Civil Proceeding
What outcomes you can seek using a civil remedy
The Act allows the court to make the following civil remedy orders:
- Orders to do something, or to stop doing something;
- Interim orders before the proceedings are concluded;
- Consent orders;
- Ancillary orders; and
- Compensation orders.
The court can order the person who it agrees is not complying with the Act of a permission condition to:
- stop engaging in specific conduct; or
- take specific action
which the court considers reasonably necessary to prevent, minimise or remedy the contravention or non-compliance with the Act or a permissions condition.
The court can also order a person it finds is not complying with the Act to provide a financial assurance as a condition for them engaging in an activity. EPA has published information on the types of financial assurance that can be required.
Compensation orders can be made to compensate a person who has suffered or may suffer injury, loss or damage as a result of another person’s contravention of the Act or a permission condition. The compensation order can also require a person to cover costs reasonably incurred by the injured person in the course of taking action to prevent, minimise or remedy, including:
- any injury, loss or damage suffered; or
- any harm to human health or the environment
What happens if a person does not obey a civil remedy order
The Supreme and County Courts can imprison or fine a person for being in contempt. For companies in contempt, the Courts can order the removal of property/assets of the company, or issue a fine, or both.
Read more about the Act
The Environment Protection Act and the community
What the Act means for Victorian businesses
We all have a duty to prevent harm: general environmental duty
Reviewed 11 August 2022