Decision making under the new Environmental Reference Standard

Victoria's new environmental regulatory regime under the Environment Protection Act 2017 as amended (EP Act), comes into effect on 1 July 2021. A key component of the new regime is the Environmental Reference Standard (ERS), a new subordinate instrument also coming into effect on 1 July 2021. 

The ERS sets out environmental values of air, noise (acoustic), land and water environments to be achieved or maintained in the whole or any part of Victoria. Values are tied to the uses, attributes and functions of the environment. It includes indicators and objectives which are to be used to measure whether an environmental value is being achieved or maintained.

Why does the ERS matter to decision makers?

The ERS is intended to provide a benchmark of desired environmental values for assessing, monitoring and reporting on the state of the environment. The ERS will operate as a decision making tool and requirement under the EP Act and other Victorian legislation. It is not a compliance standard for individuals.

The ERS will be relevant to decisions made under various legislation.  For example:[1]

• Under the EP Act, the ERS must be considered by the EPA in licence applications; the Minister when making regulations and compliance codes, and deciding whether to declare an issue to be an issue of environmental concern; and by environmental auditors.
• VCAT must consider the ERS when it is relevant to review applications under various legislation.[2]
• Responsible authorities may consider the ERS, if relevant, when making planning decisions under the Planning and Environment Act 1987 (PE Act).
• When making an environmental management plan under the Marine and Coastal Act 2018, the Minister must include actions to protect environmental values and must describe how that plan promotes the objectives of the ERS.
• Under the Major Transport Projects Facilitation Act 2009, proponents are required to set out how the ERS will be taken into account in certain documents submitted to the Secretary for approval.

What is different about the ERS?

The ERS replaces parts of the current regime of State Environment Protection Policies (SEPPs) which will formally cease on 1 July 2021. The beneficial uses, indictors and objectives of the SEPPs are revised and translated into the ERS as follows:

• Part 2 of the ERS provides for 'air' values.  It adopts the protected beneficial uses in SEPP (Air Quality Management) cl 9, and largely replicates existing standards in the indicators and objectives in Schedules 1 and 2 to the SEPP (Ambient Air Quality).  There is also a new objective relating to offensive odours.
• Part 3 provides for 'noise' values and introduces new standards and values, and replicates the beneficial uses from SEPP (Control of Noise from Industry, Commerce and Trade) and SEPP (Control of Music Noise from Public Premises).  The ERS does not set noise limits, this is done by the Regulations and the Noise Protocol.
• Part 4 deals with 'land' values by re-implementing SEPP (Prevention and Management of Contaminated Land) with minor changes throughout.
• Part 5 deals with 'water' values and uses standards from the SEPP (Waters).

Much of the remaining content of the SEPPs are managed by other parts of the new regime including the General Environmental Duty, Regulations, notice provisions and obligations on land managers.

What does this mean for Government decision makers?

Public decision makers need to be aware of the ERS framework and how the values and indicators operate in order to appropriately exercise decision making powers.

While the content of the ERS will be generally familiar to decision makers, the additions and absences should be noted. Additionally, the format of the ERS is significantly different to the existing SEPPs, and the ERS is less detailed. While this new form is directed to improving the overall simplicity and useability of the standards, there may be some initial ambiguity in how to apply the standards. Decision makers should become familiar with the new form and keep an eye out for further guidance material to be provided by EPA on how to apply and consider the ERS.

Decision makers should also be aware of the disconnect between VCAT review jurisdiction being able to consider the ERS where relevant, and not all decisions requiring consideration of the ERS. For example, the ERS is not a mandatory consideration for responsible authorities when considering whether to grant a permit under s 60 of the PE Act. However, the ERS, when relevant, is a mandatory consideration for VCAT when reviewing decisions made under the PE Act. Though this is the same approach in the current regime and does not represent a drastic shift, it is worth bearing in mind.

Footnotes

[1] Part 4 of the Environment Protection Amendment Act 2018 (as amended by the Environment Protection Amendment Act 2019).
[2] This includes the EP Act, the Catchment and Land Protection Act 1994, the Flora and Fauna Guarantee Act 1994, the Subdivision Act 1988, the Water Act 1989, and the Planning and Environment Act 1987.