The Supreme Court of Victoria has ruled on an application to strike out breaches of the GED which were alleged by the Victorian Environment Protection Authority (EPA) against Vista Estate Pty Ltd ("Vista"). The ruling provides useful guidance on:

• How to plead breaches of the GED (and other statutory duties under the EP Act) in conformity with the rules of the Court
• The need to avoid drawing analogies with similarly-worded duties under occupational health and safety legislation (including in relation to the particularisation of criminal and quasi-criminal charges).

The ruling also emphasizes that the element qualifying liability under the GED is "so far as reasonably practicable". Explanatory provisions of the Act are not elements to the cause of action (and do not need to be specifically pleaded).

The context for those observations is an interlocutory application to strike out pleadings. Whether the EPA will succeed in establishing civil liability for a breach of the GED remains to be seen.

Background

Between October 2021 and January 2022, Vista carried out works at a site in Brownhill, Victoria which involved the removal of vegetation and topsoil. Those works caused pollution in the form of aggravated stormwater run-off which reached the Yarrowee River near Ballarat.

In the proceeding, the EPA is alleging breaches of:

• The general environmental duty (GED) under section 25(1) of the EP Act
• Specific environmental duties under the EP Act:
  • To use and maintain systems for the identification, assessment and control of risks of harm to human health and the environment from pollution and waste (section 25(4)(b))
  • To use and maintain adequate systems to ensure that if a risk of harm to human health or the environment were to eventuate the harmful effects would be minimised (section 25(4)(c))
  • To provide information, instruction, supervision and training to any person engaging in the activity generative of the risks to enable their compliance with the general environmental duty (section 25(4)(e))
  • An obligation to restore an area affected by a pollution incident as far as reasonably practicable (section 31)
  • An obligation to notify the EPA of a pollution incident as soon as practicable (section 32 of the EP Act)
  • The transitional duty prohibiting conduct resulting in material harm to human health or the environment (section 28 of the EP Act).

In depth

Vista applied to strike out paragraphs of the Statement of Claim, arguing that the EPA's allegations were deficient by failing to specifically address the matters set out under section 6(2) of the EP Act:

1. The likelihood of those risks eventuating
2. The degree of harm that would result if those risks eventuated
3. What the person concerned knows, or ought reasonably to know, about the harm or risks     of harm and any ways of eliminating or reducing those risks
4. The availability and suitability of ways to eliminate or reduce those risks
5. The cost of eliminating or reducing those risks

In response, the EPA argued that section 6(2) only served an "explanatory function", such that there was no requirement to specifically address those matters when alleging a breach of the GED.

The Court agreed with the EPA for three key reasons.

First, the Court accepted the EPA's construction of section 6(2) as strictly "explanatory" rather than establishing the elements to a civil cause of action or statutory duty (at [45]). The Court reasoned "there is nothing in the text or context of s 6(2) which can be understood to provide anything more than an explanation of preliminary matters which set up the framework of the Act" (at [48]). To elevate the matters prescribed by section 6 into the elements of an action for breach of the general environmental duty (or any other duty relied on by the EPA against the Defendants) would be contrary to the intention of the legislature.

Secondly, the Court rejected that case law relating to occupational health and safety legislation was applicable to the construction of the EP Act. Such legislation has been held to require that prosecuting authorities must allege "specific details or requirements of the duties alleged to have been breached" (as in Kirk at [25]) and must "outline positive matters which might negate the potential defences available to the offending employer" (as in Baiada at [26]).

The Defendants had referred to the observation of the High Court in Chugg v Pacific Dunlop Ltd, that:

If, on a prosecution, proof which excludes a qualification of a duty is necessary to establish the offence, then, in a civil claim, proof which does not exclude the qualification fails to prove a breach of the duty.

The Court rejected the Defendants' submission that this observation was applicable to prosecutions and civil claims under the EP Act. Specifically, the Court reasoned that the observation in Chugg was made in respect of "statutory defences which are directly tied to the cause of action", which is not the case with section 6(2) of the EP Act.

Thirdly, the Court emphasised the difference between criminal (or quasi-criminal) liability under occupational health and safety legislation, as compared to "the civil declaratory relief and penalty regime under the EP Act". In the case of the letter, the level of particularity required is governed by the Rules of the Court and the requirements of civil pleadings generally.

Accordingly, the EPA was not required to specifically plead the matters set out under section 6(2) of the EP Act when alleging a breach of a duty to minimise or eliminate risks so far as reasonably practicable. The Court also rejected contentions by the Defendants that other "preliminary" provisions of the EP Act (including the concepts of "engaging in an activity", "harm" and "material harm") should have been specifically pleaded by the EPA in the Statement of Claim.

On those bases, the Court dismissed the Defendants' strike out application.

This is one of the first occasions on which the Supreme Court of Victoria has considered the GED (and other recently-enacted duties under the EPA). The ruling provides invaluable guidance to the EPA (and any other "eligible person" with standing) on how to plead breaches of the EP Act in civil proceedings.