Environment Protection Authority v Vista Estate Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2022 03887

Environment Protection Authority	Plaintiff
v
Vista Estate Pty Ltd (ACN 627 177 637)	First Defendant
Cameron Stewart Gull	Second Defendant

---

JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 September 2023
DATE OF RULING:	13 September 2023
CASE MAY BE CITED AS:	Environment Protection Authority v Vista Estate Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 552

---

PRACTICE AND PROCEDURE — PLEADINGS — Application by defendants to strike out claim or parts of claim — Claim by plaintiff brought in reliance on Environment Protection Act 2017 (Vic) (‘EP Act’), ss 356, 316, 309, 25, 28, 30, 31 and 32(2) — Whether pleadings inadequate — Whether failure to plead aspects of s 6 of the EP Act fatal to pleadings — Interpretation of s 6 — Comparison by defendants with duties provisions of the Occupational Health and Safety Act2004 (Vic) (‘OHS Act’) — Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 distinguished — Construction and purpose of Acts distinguished — Principles pertaining to strike out of pleadings per Wheelahan v City of Casey (No 12) [2013] VSC 316 (Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580 and Babcock & Brown DIF III Global‑Investment Fund LP v Babcock & Brown International Pty Ltd (No 2) [2017] VSC 556 also considered) — Principles not offended by nature or construction of pleadings, including referencing matters earlier pleaded — Ambit and substance of claim clear — Application dismissed.

INTERLOCUTORY ORDERS — INTERIM INJUNCTION — Application to vary interim injunction where orders made by consent — Adam P Brown Male Fashions Pty Ltd v Philip Morris (1981) 148 CLR 170; HJ (a pseudonym) v IBAC [2021] 64 VR 270 — Material change in circumstances — Interests of justice — Ongoing risk reduced by action already taken — Plaintiff can conduct ongoing monitoring and exercise other powers — Utility in reduction of obligations — Form of obligations and whether undertaking appropriate in place of injunctive orders — Amendment of existing orders appropriate — Amendment made.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr M Sharpe	Environment Protection Authority
For the Defendant	Mr P O’Farrell; Ms C van Proctor	Russell Kennedy

CONTENTS

Introduction

Strike Out Application

Relevant provisions
Submissions
Defendants’ submissions
EPA’s submissions

Consideration
Relevance of s 6(2)
Principles for strike out applications

Determination

Interim Order Variation Application

Principles applying to the variation of an order
Submissions
Defendants’ submissions
EPA’s submissions

Consideration
Assessment of compliance and plans implemented
Ongoing risk
Substance and form of ongoing obligations for the defendants

Determination

Conclusion

HER HONOUR:

INTRODUCTION

In this application, Vista Estate Pty Ltd (‘Vista Estate’) and one of its directors Cameron Gull (together ‘the defendants’) seek to strike out parts or the whole of the statement of claim in a proceeding brought against them by the Environment Protection Authority (‘EPA’) in its capacity as Victoria’s environmental regulatory authority. The defendants also seek to vary an Interim Order made by the Court.

The EPA claims the defendants breached duties arising from the Environment Protection Act 2017 (Vic) (‘EP Act’) as a result of works undertaken by them — or on their behalf — on land at Hillview Road, Brown Hill, more particularly described as Lot 2 of Plan of Subdivision PS7000948 (‘the subject land’). The works were conducted between October 2021 and January 2022. The EPA alleged that the removal of vegetation and topsoil caused pollution through stormwater runoff from the land, which ran into the upper reaches of the Yarrowee River near Ballarat.

On 11 November 2022, the Court made orders in the nature of an interim injunction which, among other things, require Vista Estate to undertake certain works and water quality activities, pending the final hearing and determination of the proceeding (‘the Interim Order’). The Interim Order was made by consent, without admissions.

The defendants have issued two preliminary applications on summons.

The first application seeks to strike out the indorsement of claim on the writ, or alternatively, paragraphs 34.1, 34.2, 35, 36, 37, 38, 39, 40, 41, and 42 of the statement of claim (‘SOC’).[1] This application relies on r 23.02(a), (b), (c) or (d) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules’).[2]
[1]Being the Plaintiff’s ‘Statement of Claim’ (filed 3 October 2022 in Environment Protection Authority v Vista Estate Oty Ltd & anor, S ECI 2022 03887, Supreme Court of Victoria) (‘SOC’).
[2]The strike out application was made by summons dated 21 April 2023 and the affidavit of Stefan Helmut Fielder affirmed on that date.

The second application seeks to vary the Interim Order by vacating Order 1, which requires Vista Estate to undertake the works and water quality activities noted above. This application was made on the basis that the circumstances have sufficiently changed such that Order 1 should be discharged or, alternatively and at minimum, modified.[3] The EPA concedes that Order 1 requires modification, however the parties were not able to reach an agreement as to how Order 1 should be modified.
[3]The variation application was made by summons dated 21 March 2023 as supported by the affidavit of Stefan Helmut Fielder affirmed on 17 March 2023.

If the indorsement on the writ or the pleadings are struck out as the defendants seek in the first application, the second application is rendered nugatory.

For the reasons which follow, I am not satisfied that the objections to the pleadings agitated by the defendants in the first application have merit. I am therefore not satisfied that the indorsement of claim on the writ, or the specific paragraphs of the SOC identified, should be struck out.

In respect of the second application, I am satisfied that Order 1 should be varied. The passage of time, the imminent change of ownership of the land subject to Stage 1 of the development, and the fact that the works and monitoring have been carried out in general compliance with Order 1 lead to the conclusion that the form of the order requires amendment. However, in my view some form of ongoing supervision by the Court remains necessary. A modified form of Order 1 will be made accordingly.

In determining the two applications, the numerous affidavits[4] and submissions[5] of filed by both parties were considered.
[4]‘Affidavit of Benjamin Poole’ (3 October 2022); ‘Affidavit of Stefan Helmut Fielder‘ (18 October 2022); ‘Affidavit of Cameron Stewart Gull’ (3 November 2022); ‘Affidavit of Jackson Maher Zaal’ (3 November 2022); ‘Affidavit of Kathy Reynolds’ (8 November 2022); ‘Affidavit of Paul Leahy’ (8 November 2022); ‘Affidavit of Cameron Stewart Gull’ (15 March 2023); ‘Affidavit of Stefan Helmut Fielder‘ (17 March 2023); ‘Affidavit of Rachel Therese Hawkins’ (24 March 2023); ‘Affidavit of Peter Tziotis’ (sworn 28 March 2023); ‘Affidavit of Kathy Reynolds’ (28 March 2023); ‘Affidavit of Cameron Stewart Gull’ (17 April 2023); ‘Affidavit of Stefan Helmut Fielder‘ (17 April 2023); ‘Affidavit of Stefan Helmut Fielder‘ (21 April 2023); ‘Affidavit of Cameron Stewart Gull’ (28 July 2023); ‘Affidavit of Kathy Reynolds’ (11 August 2023); ‘Affidavit of Cameron Stewart Gull’ (16 August 2023); ‘Affidavit of Cameron Stewart Gull’ (30 August 2023); and ‘Affidavit of Jackson Maher Zaal’ (30 August 2023)
[5]Defendants ‘Outline of Submissions’ (13 July 2023); Defendants ‘Outline of Submissions in Reply’ (11 August 2023); ‘Plaintiff’s Outline of Submissions in Opposition to the First Defendant’s Strike Out Application’ (14 August 2023); Defendants ‘Outline of Submissions’ (4 August 2023); ‘Plaintiff’s Outline of Submissions in Opposition to the First Defendant’s Application to Vary Consent Orders’ (14 August 2023); Defendants ‘Supplementary Outline of Submissions in Reply’ (30 August 2023); and ‘Plaintiff’s Outline of Submissions in Reply’ (31 August 2023)

STRIKE OUT APPLICATION
Relevant provisions

The EPA contends that Vista Estate owes certain duties and obligations under the EP Act, which it says includes:

(a) The duty under s 25(1) when engaging in an activity that may give rise to risks of harm to the environment from pollution, to minimise those risks so far as reasonably practicable (‘General Environmental Duty’);

(b) An obligation under ss 25(4)(b), (c) and (e) (‘Specific Environmental Duties’) to:

…
(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;
(c) use and maintain adequate systems to ensure that if a risk of harm to human health or the environment from pollution or waste were to eventuate, its harmful effects would be minimised;

…
(e)provide information, instruction, supervision and training to any person engaging in the activity to enable those persons to comply with the duty under subsection (1).

(c) An obligation to, as far as reasonably practicable, restore an area affected by a pollution incident caused by Vista Estate’s act or omission under s 31 (‘Remediation Duty’);

(d) An obligation to notify the EPA, as soon as practicable, of a pollution incident resulting from Vista Estate’s activity under s 32 (‘Notification Duty’); and

(e) The transitional duty prohibiting conduct that results in material harm to human health or the environment from pollution under s 28 of the EP Act (‘No Material Harm Prohibition’).

The defendants raise that some of the EPA’s pleadings in relation to the above duties are deficient because they do not plead the matters set out in s 6 of the EP Act. Section 6 is found in the ‘Chapter 1 – Preliminary’ provisions of the EP Act, which describe the concept of minimising risks of harm to human health and the environment. It provides:

6The concept of minimising risks of harm to human health and the environment
(1)A duty imposed on a person under this Act to minimise, so far as reasonably practicable, risks of harm to human health and the environment requires the person—
(a)to eliminate risks of harm to human health and the environment so far as reasonably practicable; and
(b)if it is not reasonably practicable to eliminate risks of harm to human health and the environment, to reduce those risks so far as reasonably practicable.

(2)To determine what is (or was at a particular time) reasonably practicable in relation to the minimisation of risks of harm to human health and the environment, regard must be had to the following matters—
(a)the likelihood of those risks eventuating;
(b)the degree of harm that would result if those risks eventuated;
(c)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;
(d)the availability and suitability of ways to eliminate or reduce those risks;
(e)the cost of eliminating or reducing those risks.

Submissions

In essence, the strike out application relates to whether the necessary material facts have been adequately pleaded such that the defendants have sufficient notice of the claims made against them under the EP Act, in order to formulate a response.

As aforementioned, the defendants sought that either the claim be struck out in its entirety, or alternatively that paragraphs 34, 35, 36, 37, 38, 39, 40, 41, and 42 of the SOC be struck out.

Defendants’ submissions

It is apparent that the defendants take particular issue with paragraphs 34, 35, and 42 of the SOC. In their defence filed 20 December 2022,[6] the defendants deny the claims made against them and plead that they acted as far as reasonably practical in the circumstances. The defendants then raise a pleadings objection pertaining to paragraphs 34, 35, and 42 of the SOC as follows:
[6]‘Defence’ (filed 20 December 2022 in Environment Protection Authority v Vista Estate Oty Ltd & anor, S ECI 2022 03887, Supreme Court of Victoria) (‘Defence’).

(a) Sub‑paragraph 34.1 alleges a breach of the General Environmental Duty, and sub‑paragraph 34.2 alleges a breach of the Specific Environmental Duties, both which refer to matters pleaded at paragraphs 2 to 9, 12 to 17, 20 and 27. The defendants contend that these paragraphs ought to be struck out because they do not plead the requirements of s 6 of the EP Act, nor do they identify any of the s 6(2) matters, plead a conclusion from unstated facts (with the requisite material facts not identifiable by reference to the earlier paragraphs), and do not disclose a cause of action.[7]

(b) Paragraph 35 alleges a breach of the No Material Harm Prohibition, and similarly is based on matters pleaded at earlier paragraphs, in this instance paragraphs 2 to 9 and 12 to 17. The defendants argue that the matters referred to in those previous paragraphs do not constitute a contravention of the General Environmental Duty, that no cause of action is disclosed, and that this paragraph ought to be struck out.[8]

(c) Paragraph 42 alleges that Mr Gull was involved in, aided or abetted,[9] Vista Estate’s contravention of its duties under the EP Act, rendering him personally liable pursuant to s 316(1). Mr Gull denies this, says that he “exercised due diligence to prevent the commission of any contravention of the Act by the [Vista Estate]”, repeats the matters referred to in (a) and (b) above, and says that paragraph 42 ought to be struck out.[10] Further, it is said that no allegation of breach of the civil penalty provision is alleged and that the material facts essential to the elements of the cause of action under s 316(1) are not pleaded.[11]

[7]Defence, n 6, [34].

[8]Ibid, [35].

[9]More precisely, it is alleged that by reason of his role as a director and as the person who gave the instructions to clear the land the second defendant aided, abetted, counselled or procured the first defendant’s contravention of its duties under the EP Act and/or was directly or indirectly concerned in or party to the first defendant’s contravention of its duties under the EP Act.

[10]Ibid, [42].

[11]Ibid.

On 1 March 2023, the defendants made a formal request for further and better particulars in response to the SOC. Despite the Request being extensive, I note that no request was included for further and better particulars of paragraph 10 and 11 of the SOC. Paragraph 10 of the SOC pleads that the General Environmental Duty and certain Specific Duties are owed by the Vista Estate under s 25 of the EP Act. Paragraph 11 pleads the prohibition from engaging in conduct that results in material harm to the environment pursuant to s 28 of the EP Act.

The EPA provided further and better particulars of the SOC by a document dated 13 April 2023. The defendants corresponded with the EPA to the effect that they maintained their position regarding the alleged deficiencies in the pleadings. Then, on 21 April 2023, the defendants issued the summons for the strike out application now before the Court for determination.

In the timetabling directions made by Judicial Registrar Keith on 24 May 2023, his Honour indicated that the parties were to make submissions in respect of s 6(2) of the EP Act. The defendants made submissions, which are considered in detail below, as to the purported relevance of s 6(2) as an ‘essential’ aspect of the type of claim brought by the EPA, and thus submitted that by failing to address the matters in s 6 the EPA’s pleadings were inadequate.

EPA’s submissions

The EPA relied on the modern and holistic approach to the strike out of pleadings, as detailed by the Court of Appeal in Uber Australia Pty Ltd v Andrianakis,[12] and contended that their case “give[s] clear notice of the case to be met at trial”.[13] The EPA also emphasised that this approach is consistent with practical case management processes and the overarching purpose of the Civil Procedure Act 2010 (Vic) (‘Civil Procedure Act’) “to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute”.[14]
[12](2020) 61 VR 580 (‘Uber’).
[13]Ibid, [53] (Niall, Hargrave, and Emerton JJA).
[14]Civil Procedure Act 2010 (Vic), s 7.

The EPA took the Court through the different headings of its pleadings and described how material facts were pleaded by reference, in some cases, to earlier paragraphs and the facts stated therein.

In respect of s 6(2) of the EP Act, the EPA contended that the matters outlined therein are not matters which require full particularisation or are essential to the claim alleged, rather they perform an explanatory function. The EPA further said, from a practical perspective, that it is unlikely to obtain information in respect of aspects of the s 6(2) matters until after further discovery. In all the circumstances, on a careful analysis of the EP Act, there was no reason to mandate the s 6 matters in pleadings under the EP Act regime.

Consideration

Relevance of s 6(2)

At the hearing of the summons, counsel for the EPA submitted that it was a necessary precondition to determining the adequacy of the pleading that the Court rule on the proper construction of s 6(2), in the context of the legislation and, in particular, whether it is required to be specifically addressed in the pleadings.

The failure to plead “the requirements of section 6” of the EP Act was a ground relied upon by the defendants in relation to paragraphs 34.1 and 34.2 of the SOC, being the alleged breach of the General Environmental Duty and/or the Specific Environmental Duties.[15]
[15]Defence, n 6, [34].

The defendants argued that the concepts of minimising risk of harm to human health and minimising risk to the environment, as set out in s 6, are relevant to the duties which permeate the EP Act, and consequently it is necessary that they are addressed in the pleadings and that the failure to address the relevant matters in s 6(2) constitutes an omission which is fatal to the pleadings. The defendants drew an analogy with jurisprudence established in respect of the general duties found in the Occupational Health and Safety Act2004 (Vic) (‘OHS Act’). They relied on the High Court decisions of Kirk v Industrial Court of New South Wales (‘Kirk’)[16] which dealt with equivalent New South Wales occupational health and safety legislation, Chugg v Pacific Dunlop Ltd (‘Chugg’)[17] and Baiada Poultry Pty Ltd v The Queen (‘Baiada v R’)[18] which dealt with the Victorian OHS Act, as well as decisions of the Supreme Court of Victoria applying Kirk.[19]
[16](2010) 239 CLR 531 (‘Kirk’).
[17](1990) 170 CLR 249 (‘Chugg’).
[18][2012] HCA 14 (‘Baiada v R’).
[19]In particular: Director of Public Prosecutions v Vibro‑Pile (Aust) Pty Ltd (2016) 49 VR 676; SKM Services Pty Ltd v Magistrates' Court of Victoria & Anor [2019] VSC 460.

The principle drawn from Kirk is that OHS legislation should be interpreted as requiring the specific details or requirements of the duties alleged to have been breached by the offending employer to be charged in the statement of offences.[20] The defendants argued that the same level of detail is mandated in respect of pleadings pertaining to contraventions of duties under the EP Act and the particularisation of s 6(2) matters.
[20]Kirk, n 16, [12]–[19].

In Baiada v R, separately and without considering Kirk, the High Court held that the prosecuting agency must outline the positive matters which might negate the potential defences available to the offending employer under the OHS Act, as these are “essential ingredients” of the case to be met for contraventions of s 21 of the OHS Act.[21] Section 21 provides the statutory offence as follows:
[21]Baiada v R, n 18, [55].

21 Duties of employers to employees
(1) An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.
Penalty: 1800 penalty units for a natural person;
9000 penalty units for a body corporate.

(2) Without limiting subsection (1), an employer contravenes that subsection if the employer fails to do any of the following—
(a) provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health;
(b) make arrangements for ensuring, so far as is reasonably practicable, safety and the absence of risks to health in connection with the use, handling, storage or transport of plant or substances;
(c) maintain, so far as is reasonably practicable, each workplace under the employer’s management and control in a condition that is safe and without risks to health;
(d) provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the management and control of the employer;
(e) provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health.

Chugg is an earlier decision, in which the High Court discussed the construction of s 21 of an older iteration of the Victorian OHS Act, the Occupational Health and Safety Act 1985 (Vic) (‘1985 OHS Act’), holding 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. And if that breach of the duty be not proved, the common law remedy of damages is not available.[22]

[22]Chugg, n 17, 251–252 (Brennan J); see similar findings of the rest of the bench at 253–254 (Deane J), and 262–263 (Dawson, Toohey and Gaudron JJ).

The defendants argued by comparison that the EPA’s pleadings under the EP Act excluded the necessary detail and qualification of duties breached, including the supposed s 6 requirements.

I disagree with the logic behind this submission, and do not consider the duties regimes under the EP Act and OHS Act to be analogous, particularly in the context of the present matter.

An initial and key point of distinction is that the legal response to a breach of duties under the OHS Act is a criminal or at least quasi‑criminal process.[23] The cases relied upon by the defendants pertain to charges brought against the offending party, initiated by a statement of offences or a charge sheet. In the present matter, whilst it is possible for criminal sanctions to be imposed under the EP Act, this proceeding has been brought as a civil proceeding.
[23]For a detailed discussion on the subtleties of the nature of OHS legislation in Australia, see R Johnstone, Occupational Health and Safety Law and Policy (Lawbook Co, 2^nd ed, 2004).

Further, there are clear procedural and practical matters which differentiate the OHS Act and the EP Act regimes in this sense.

The level of materiality required to be pleaded in order to make out the cause of action for the civil declaratory relief and penalty regime under the EP Act is distinct from that required in respect of a criminal charge. The Court’s Rules govern the adequacy of pleadings in the its civil jurisdiction, including in the present matter.

The procedural distinctions are also evident on a close analysis of the cases proffered by the defendants.

In Kirk, the process of review and appeal from the lower court was governed by the Crimes (Appeal and Review) Act2001 (NSW).[24] Further, as the High Court in Kirk made clear, the New South Wales OHS legislation contained specific defences to the criminal penalty provisions relied on in that case.[25] The nature of these detailed defences was such that the statement of offences filed to initiate the proceeding required a specific level of detail, in order to enable the defendant to potentially raise those defences in meeting the case against him.[26] This is the same as the reasoning of the Court in Baiada v R discussed above at [26]. These cases focus on parallel statutory defences which are directly tied to the cause of action, which cannot be ignored in the originating document. In the context of the present case, with respect to a claim under the EP Act, the s 6(2) matters are not of the same essential and interconnected nature.
[24]See Kirk v Industrial Relations Commission of New South Wales [2008] NSWCA 156.
[25]Kirk, n 16, [15]–[18], referring to s 53.
[26]Ibid.

Further, whilst the defendants cited Baiada v R, there is a related judicial review decision of the Victorian Supreme Court, Baiada Poultry Pty Ltd v Glenister (‘Baiada v Glenister’),[27] which clarified the application of Kirk. In Baiada v Glenister the Court rejected a challenge to the adequacy of a charge under s 26 of the OHS Act and put the Kirk decision into context. The relevant passage from Baiada v Glenister (per Ferguson and McLeish JJA) was quoted in Director of Public Prosecutions v Vibro‑Pile (Aust) Pty Ltd[28] with the following emphasis, and I repeat that emphasis:

It is plain that a charge under s 26(1) of the OHS Act must identify the act or omission which constitutes a contravention of the section. In our opinion, the reasoning in Kirk does not support the proposition that this requires specification of the detailed actions which it was reasonably practicable for the defendant to take. Kirk concerned a trial that had been heard and determined on the basis of charges which were particularised almost entirely in terms of the words of the statute, in circumstances where the onus of proof on the question of reasonable practicability lay on the defendant. Such particulars, as well as failing to inform the defendant of the substance of the charge, amounted in effect to little more than a statement of the statutory offence.
References in the plurality’s judgment to ‘particular measures’ need to be read in that light. The fundamental requirement is that the act or omission that constituted the contravention be specified. Analysis of a failure to do so in terms of the need to specify a ‘measure’ or a ‘particular measure’ does not say anything as to the degree of particularity required. It serves, instead, to emphasize what is the relevant act or omission which gives rise to the offence, namely the measure or measures which the defendant has failed to take to prevent an identifiable risk eventuating. The convictions in Kirk stemmed from charges which wholly failed to identify any such measure. That sufficed to require the convictions to be set aside. Baiada’s submissions sought to attribute too much significance to the plurality’s use of the word ‘measure’.[29]

[27][2015] VSCA 344 (‘Baiada v Glenister’).

[28][2016] VSCA 55, [133].

[29]Baiada v Glenister, n 27, [48]–[49] (emphasis added).

Thus, in my view, there are multiple reasons not to be persuaded that Kirk is an applicable authority in the present case. Kirk was decided in the criminal jurisdiction and involved a very particular and substantial inadequacy of the particularisation of the offending claimed.

Turning now to Chugg, in which the High Court considered the interpretation of pleading requirements under s 21 of the old 1985 OHS Act. The position of the High Court (as represented by the quote of Brennan J above at [27]) was that the same standard of qualification must apply to both penalties for criminal offences and civil claims under the OHS Act. Whilst I can see the parallel the defendants seek to draw between the conclusion in Chugg and the capability of the EPA to pursue either criminal or civil actions under the EP Act, this parallel is not sufficient in my view to engage the doctrine of precedent rendering Chugg binding in this case.

The doctrine of precedent requires lower courts to follow the previous decisions of courts higher in the juridical hierarchy, unless the earlier decision is distinguishable from the circumstances of the matter at hand.[30] In my view, the fact that Chugg considers a different legislative regime is enough to distinguish that matter from the present case. The OHS Act and the EP Act are different creatures; the two statutes each have their own distinctive structures and language, which naturally lend to different requirements for pleadings or other initiating documents.
[30]Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16 [61] (McHugh J); HC Sleigh Ltd v South Australia [1977] HCA 2, [5] (Mason J); see also Sir Anthony Mason, ‘The use and abuse of precedent’ (1988) 4 Australian Bar Review 93.

The requirement of additional detail makes sense in the context of the words and structure of the OHS Act. The language used is directory and specific. One of the main purposes of the OHS Act is to create a legislative framework giving effect to the objects of the Act. The objects of the OHS Act are as follows (emphasis added):

2 Objects
(1) The objects of this Act are—
(a) to secure the health, safety and welfare of employees and other persons at work; and
(b) to eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work; and
(c) to ensure that the health and safety of members of the public is not placed at risk by the conduct of undertakings by employers and self‑employed persons; and
(d) to provide for the involvement of employees, employers, and organisations representing those persons, in the formulation and implementation of health, safety and welfare standards—

having regard to the principles of health and safety protection set out in section 4.
(2) It is the intention of the Parliament that in the administration of this Act regard should be had to the principles of health and safety protection set out in section 4.

Section 4 provides as follows:

4 The principles of health and safety protection
(1) The importance of health and safety requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances.
(2) Persons who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable
(3) Employers and self‑employed persons should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces and in the conduct of undertakings.
(4) Employers and employees should exchange information and ideas about risks to health and safety and measures that can be taken to eliminate or reduce those risks.
(5) Employees are entitled, and should be encouraged, to be represented in relation to health and safety issues

What is argued by the defendants to be the equivalent provision to the General Environmental Duty provision in the EP Act is in the following terms in the OHS Act:

Part 3—General duties relating to health and safety
Division 1—The concept of ensuring health and safety
20 The concept of ensuring health and safety
(1) To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person—
(a)to eliminate risks to health and safety so far as is reasonably practicable; and
(b)if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.

(2) To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety—
(a) the likelihood of the hazard or risk concerned eventuating;
(b) the degree of harm that would result if the hazard or risk eventuated;
(c)what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
(d) the availability and suitability of ways to eliminate or reduce the hazard or risk;
(e) the cost of eliminating or reducing the hazard or risk.

Whilst there are parallels between these two statutes in the sense of public protection and risk minimisation, I am not persuaded by the argument made by the defendants.

The structure and wording of ss 2 and 20 of the OHS Act are not in the same terms as what might be said to be the equivalent provisions of the EP Act — s 1 ‘purposes’, and ss 4 and 5 (which explain or describe harm and material harm) and s 6 (including in particular sub-s (2) which explains the concept of harm to human health). There is no such emphasis or direction in the correspondingly titled ‘concept’ section in s 6 of the EP Act as appears in s 20 of the OHS Act that “[t]o avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety …”

The words used in the OHS Act, and the interrelationship one is directed to, are just not replicated in the same way in the EP Act. Whilst there is a similarity of terms used in the OHS Act and the EP Act, and there is a reference in the Explanatory Memorandum and the Second Reading Speech to the EP Act being modelled on the OHS Act, that does not mean that the task of the interpretation of the EP Act in respect of duties must be identical to that of the OHS Act. To treat these tasks as identical would be to ignore the basic and fundamental principles of statutory interpretation. As oft stated, the approach must always start with the words of the statute, with regard to its context.[31]
[31]SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, [14] (Kiefel CJ, Nettle and Gordon JJ).

As noted, the EPA argued that s 6, including sub‑s (2), has an explanatory function, as opposed to functioning to establish an element or elements of a cause of action or duties upon which a claim must be based. It submitted that the provisions of the OHS Act may appear to be similar in the scheme of the legislation to the EP Act, however there is a key difference — the OHS Act specifically sets out that regard must be had to the matters in s 20(2)(a)–(e) in determining what is reasonably practical for the purposes of the general duties section.

In my view, this submission should be accepted. Such an interpretation accords with the text and context of the EP Act.

The main purposes of the EP Act are set out in s 1 and include: [32]
[32]Environment Protection Act 2017 (Vic), s 1, sub‑s (e)–(g) and (k)–(m) (‘EP Act’).

…
(e)to set out principles of environment protection; and
(f)to set out the legislative framework for the protection of human health and the environment from pollution and waste; and
(g)to provide for a general environmental duty to minimise risks of harm to human health and the environment from pollution or waste; and
…
(k) to enable the Environment Protection Authority and authorised officers to ensure compliance with the Act and require action to manage risks of harm to human health and the environment from pollution or waste; and
(l) to provide for a system of criminal and civil penalties; and
(m)to provide for a system of civil remedies and compensation orders available to the Court …

Reading the scheme of the EP Act as a whole, the General Environmental Duty and the other duties referred to are specifically articulated. There is nothing in the text or context of s 6(2) which can be understood to provide anything more than an explanation of the preliminary matters which set up the framework of the EP Act. There is no cross‑referencing with the establishment of the duties set out in the legislation or to matters which must be considered in establishing their breach. This is to be contrasted with the scheme and form, as well as the text, of the OHS Act. Rather, where s 6 is mentioned in other provisions of the EP Act, it is for the clear function of providing an explanation.[33] Section 6(2) provides an explanation. It does not set a standard or parameter which would assist in establishing the existence of a duty or a breach thereof.
[33]See, e.g. Notes to ss 25 and 39.

Principles for strike out applications

The principles which apply to an application for strike out of all or part of a pleading are well known and were not in issue between the parties. I have distilled the Wheelahan v City of Casey (No 12)[34] principles of particular application in the following paragraphs:
[34][2013] VSC 316, [25] (Dixon J) (‘Wheelahan’).

(a) The function of a pleading in a civil proceeding is to alert the other party to a need to satisfy the basic requirements of procedural fairness and, further, to define the precise issues for determination so that the court may conduct a fair trial.

(b) The cardinal rule is that a pleading must state all material facts necessary to establish a reasonable cause of action or defence. The expression “material facts” is not synonymous with providing all the circumstances, but only those facts relied upon to establish the essential elements of the cause of action. Every pleading must contain a statement in summary form of the material facts upon which the party relies, but not the evidence by which the facts are to be proved.[35]
[35]Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 13.02(1)(a) (‘Rules’).

(c) Particulars are not intended to fill gaps in deficient pleadings, but are intended to meet a separate requirement; to fill in the picture of the plaintiff’s cause of action or the defendant’s defence with sufficient detail and information to put the other party on guard as to the case that must be met. An object and function of particulars is to limit the generality of the pleading and thereby define the issues to be tried.

(d) The power to strike out a pleading is discretionary. As a rule, the power will be exercised only where there is some substantial objection to the pleading complained of or where some real embarrassment is shown. If the objectionable part of the pleading is so intertwined with the rest of the pleading so as to make separation difficult, the appropriate course is to strike out the whole pleading.

(e) In an application under r 23.02 of the Rules the Court will look at the pleading itself or to the documents referred to in the pleading only.

The Court of Appeal in Uber endorsed the Wheelahan principles and agreed with the approach subsequently applied by the Court in Babcock & Brown DIF III Global‑Investment Fund LP v Babcock & Brown International Pty Ltd (No 2) (‘Babcock’).[36] The approach in Babcock emphasises that the Court should consider the pleading under challenge as a whole and adopt a practical case management approach to pleading objections. This approach is preferable compared with accepting technical objections, particularly when the true nature of the case to be met is clear from reading the pleading as a whole and where there is no embarrassment to filing a responsive pleading. Such an approach accords with the discretionary nature of the power to strike out and with the overarching purposes under the Civil Procedure Act.[37]
[36][2017] VSC 556, [15].
[37]Ibid, [15]; Uber, n 12, [52].

Determination

As set out above, I am of the view that it is not necessary to plead matters related to s 6(2). Where the absence of such pleadings has been identified as an inadequacy of the pleadings,[38] I reject that assertion.
[38]As in the Defence, n 6, [10], [11], [34.1] and [34.2].

In respect of paragraph 34 of the SOC, I am satisfied that there is sufficient materiality pleaded in respect of the General Environmental Duty and/or the Specific Environmental Duties by reference in that paragraph to the matters pleaded in paragraphs 2 to 9, 12 to 17, 20 and 27 of the same document.

This pleading style, formulated with reference back to earlier paragraphs, provides adequate materiality to meet the threshold of sufficiency to understand the case to be met. By this method, it can be said that paragraph 35 (breach of No Material Harm Prohibition), paragraph 36 (breach of Remediation Duty), and paragraph 39 (breach of Notification Duty) set out the material facts upon which the cause of action is based.

The defendants also contended that other provisions of the EP Act should have been addressed in the pleadings — several paragraphs of the defence refer to a lack of pleading in respect of s 3(2) (‘engaging in an activity’), s 4 (‘what is harm’), and s 5 (‘what is material harm’).[39] There is no requirement for the pleadings to extend to such specificity and I am not satisfied that the pleadings are deficient in this regard.
[39]Ibid, [35], [36], [37], [38], [39], [40] and [41].

A careful examination of the defence demonstrates that, at least regarding paragraphs 36 to 38 (which respond to the breach of the Remediation Duty in s 31) and paragraphs 39 to 41 (which respond to the breach of the Notification Duty in s 32), there seems to be no difficulty in understanding the case the defendants must meet.

Upon the defence filed, it is with respect to paragraphs 34, 35, and 42 regarding the Specific Environmental Duties that the question of whether the pleadings are deficient in not making reference to s 6 (and s 6(2) in particular) arises.

I am not satisfied as to the need to plead material facts which support s 6. I am not of the view that in the circumstances of the pleadings read as a whole there is a need for this course to be followed in order to establish a cause of action.

In respect of the claim of deficiency in the pleading relating to s 316 of the EP Act, regarding Mr Gull’s alleged involvement in Vista Estate’s contravention,[40] I am also of the view that this pleading is not deficient. What is required by this pleading is provided by reference to the earlier paragraphs 3 and 5 of the SOC. Section 316 lists the civil penalty provisions. That is all the pleading needs to do.
[40]SOC, n 1, [42].

The pollution event pleaded in paragraph 15 of the SOC refers to the matters described earlier in paragraphs 12 to 14. Paragraphs 16 and 17 set out the adverse effect on the waterway.

The pleadings read as a whole make it clear that what is alleged is a deficiency in action caused by the defendants in breach of the duties they are said to have under the EP Act. Additionally, more detail as to the material facts have been provided in the further and better particulars.[41]
[41]‘Further and Better Particulars of the Statement of Claim’ (filed 13 April 2023 in Environment Protection Authority v Vista Estate Oty Ltd & anor, S ECI 2022 03887, Supreme Court of Victoria) (‘Further and Betters’).

On occasion where there has been reference to further particulars being provided at a later time, I am of the view that the lack of additional particulars is not fatal to the pleadings. That is not to say that the EPA should be tardy in providing these particulars as soon as it practically can do so.

The Court is entitled to look at the pleadings overall and form a view as to the adequacy of them in meeting the task that pleadings have in the litigation, in the context of the overarching obligations set out in the Civil Procedure Act.

Read together, the SOC, the defence, and the further and better particulars make sufficiently clear:

(a) the ambit of the claim;

(b) the substance of the claim; and

(c) the matters which are in issue between the parties.

If it becomes clear, in the course of the preparation of the evidence, that there is some aspect of the issues in dispute between the parties that the defendants could not have anticipated from the pleadings, the Court can deal with this in its case management capacity at that time.

If the EPA takes the litigation in another direction unanticipated by the pleadings, it will be at risk of the costs and delay occasioned by that course. That is a different matter to an argument about the state of the pleadings as they currently appear.

This is a civil proceeding, not a criminal one, and consistent with the evidentiary burden in Brigginshaw v Brigginshaw,[42] the onus of proof sits with the EPA to make out its case. I am, however, not satisfied that the pleadings are deficient in that they require amendment or are so fundamentally inadequate that the SOC ought to be struck out.
[42](1938) 60 CLR 336.

I note the defendants’ concerns and complaints regarding the lack of diligence and timeliness on the part of the EPA to prosecute its case and meet the deadlines imposed by the Court and the Rules. Such a lack of diligence and timeliness is unsatisfactory from a government agency, considering the resources of the State and the powers it has at its disposal. The Court expects that this tardiness will not be a feature of the litigation in the future.

INTERIM ORDER VARIATION APPLICATION

The Interim Order, in its present and original form, provides in Order 1:

1.Pursuant to section 310 of the Environment Protection Act 2017 (Vic) the First Defendant, in respect of property known as and located at Hillview Road, Brown Hill, Ballarat, in the State of Victoria being the property more particularly described as Lot 2 of PS700948 (the Premises), do the following pending hearing and determination of the proceeding:
a.By 18 November 2022 undertake such works as are reasonably necessary to always maintain a freeboard at a minimum of 500mm between rainfall events in the existing retarding basins on the Premises.
b.By 25 November 2022 do all works reasonably practicable to reduce the risk of sediment discharge from the Premises into the Yarrowee River. The sediment discharge is to be monitored by the First Defendant at the points marked by green circles on the attached plan and assessed against upstream water quality in the Yarrowee River at the point marked by an orange circle on the attached plan. The works and the monitoring are to ensure that any sediment discharge from the Premises:
i.does not exceed the assessed upstream water turbidity in the Yarrowee River; and
ii.does not lead to pH levels:
·less than or equal to 6.8 pH; or
·greater than or equal to 8.0 pH.

These obligations exclude conditions of rainfall events of or exceeding 6 hours duration ‘with an average recurrence interval of 5 years’ and otherwise a single rainfall event of less than 6 hours duration that exceeds 48mm of rain;
c.Undertake water quality monitoring of stormwater discharge:
i.during normal business hours daily during any natural stormwater discharge; and
ii.at any time during any intentional stormwater discharge from the retarding basins on the land;

in order to comply with the obligations in (a) or (b) or otherwise; at the following locations:
i.upstream of the discharge;
ii.approximately 4m downstream of the discharge; and
iii. approximately 25m downstream of the discharge;

and report the monitoring results to the Plaintiff within 48 hrs of receiving results.
d.By 25 November 2022 take all reasonable steps to implement additional surface protection measures in addition to those that existed on the Premises as at 14 October 2022 to mitigate sediment discharge from the Premises.

The second summons filed by the defendants seeks to vary the Interim Order by deleting Order 1 in its entirety. This is opposed by the EPA, which proposed an alternative formulation of Order 1 which would amend the land affected by the order and tailor the enforcement to the current Interim Sediment Control and Routine Inspection Plan (‘Sediment Control Plan’) and the associated Environmental Management Plan (‘EMP’),[43] relevant to the development stage of the subject land.
[43]‘Plaintiff’s Outline of Submissions in Opposition to the First Defendant’s Application to Vary Consent Orders’ (14 August 2023), Appendix A.

The defendants offered an undertaking instead of the continuation of any form of the Interim Order. No agreement was able to be reached on this and it falls to the Court to consider the appropriate course.

Principles applying to the variation of an order

The established principles guiding the exercise of the Court’s discretion to vary an interlocutory order or injunction were outlined by the majority of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris.[44] In summary, the Court must:
[44](1981) 148 CLR 170.

(a) “remain in control” of its interlocutory order or injunction;

(b) consider whether new facts which “come into existence or are discovered” render enforcement of the order “unjust”; and

(c) only vary an order where new circumstances are “established by evidence”.[45]

[45]Ibid, [10] (Gibbs CJ, Aickin, Wilson and Brennan JJ).

As was more recently articulated by the Court of Appeal in HJ (a pseudonym) v IBAC[46] (in the comparable context of an undertaking):

[A] court may vary an undertaking if the party who gave it establishes by evidence that, in the circumstances that prevail at the time the variation is sought, the interests of justice require that the variation be made in order to avoid enforcement of the undertaking being unjust. The primary qualifying circumstance that may engage the principle is a change in facts since the undertaking was given.[47]

Submissions

Defendants’ submissions

[46][2021] 64 VR 270.

[47]Ibid, [87] (Beach, Kyrou, and Kaye JJA).

Compliance achieved

The defendant submitted that a material change in circumstances was made out on the evidence filed. They further contended that the interests of justice are not served by enforcement against Vista Estate for failure to comply with the Interim Order where:

(a) it cannot carry out water quality monitoring from land that it no longer owns or has any right to enter;

(b) it cannot carry out water quality monitoring from infrastructure which no longer exists;

(c) there is no ongoing risk of water quality impacts to the waterway;

(d) methods of best practice for the drainage of stormwater from the structure are now implemented;

(e) repeated La Niña weather patterns, which resulted in the wettest year on record for the locality, have now passed;

(f) the EPA carries out real‑time water quality monitoring of the waterway proximate to and downstream of the subject land; and

(g) the EPA’s pleading inadequacies and delays in procedure are delaying a final trial in the proceeding.

The affidavit of the Mr Gull dated 15 March 2023 sets out details of the works and measures implemented by 18 and 25 November 2022 as required by paragraphs 1(a),[48] (b)[49] and 1(d) of the Interim Order.
[48]‘Affidavit of Cameron Stewart Gull’ (15 March 2023), [22]–[29] (‘CSG 15 March Affidavit’).
[49]Ibid, [30]–[32].

It was submitted that in these circumstances paragraphs 1(a), (b) and (d) serve no further purpose.

In respect of paragraph 1(c) of the Order, which requires monitoring of stormwater quality for the purpose of compliance with paragraphs (a) and (b), the water quality monitoring data allowed evaluation of the effectiveness of the works carried out in compliance with those subparagraphs. The defendants submitted that the proper interpretation of the Interim Order, having regard to s 310 of the EP Act, is that paragraph 1(c) is now also at an end — compliance was achieved by 18 and 25 November 2022. Mr Gull’s affidavit dated 15 March 2023 sets out the water quality monitoring carried out by 18 and 25 November 2022 as required by paragraph 1(c) of the Order.[50]
[50]Ibid, [33]–[35].

Material Change of Circumstances

The defendants submitted that they have carried out the development and subdivision of the land in compliance with the permission granted by the Ballarat City Council under the Planning and Environment Act 1987 (Vic) and the Subdivision Act 1988 (Vic). In doing so, they submitted that substantial components of the drainage infrastructure, utilities, roadways, footpath and landscaping have been constructed. This includes significant works and infrastructure for a part of the development which is designed to manage and control stormwater run‑off from the land.

At the time the Interim Order was made, stormwater management of the subject land relied on two retarding basins identified as the ‘northern interim retarding basin’ and the ‘western interim retarding basin’. Both structures were designed to control stormwater run‑off during the construction phase of the development. The northern interim basin was decommissioned and removed in March 2023, with the final northern retarding basin and landscaping now completed.[51] The northern basin was not designed to retain stormwater, but rather to retard the flow and therefore allowing controlled drainage.[52] With the completion of the final system, drainage and stormwater from the northern estates upgradient of the subject land (Stage 1) and from the east (Stage 2) drain to what is to be known as Basin Reserve Number 1.[53]
[51]Ibid, [28].
[52]Ibid, [41]; ‘Affidavit of Jackson Maher Zaal’ (3 November 2020), Exhibit JMZ‑1.
[53]CSG 15 March Affidavit, n 48, [48].

Ballarat City Council issued a certificate of practical completion for Stage 1 on 20 June 2023,[54] allowing certification and registration of the Plan of Subdivision PS846424A,[55] implementation of which is imminent. Upon registration of the certified plan of subdivision:[56]
[54]‘Affidavit of Cameron Stewart Gull’ (28 July 2023), [6] and Exhibit CSG‑4, 151 (‘CSG 28 July Affidavit’).
[55]CSG 15 March Affidavit, n 48, Exhibit CSG‑2, [131]–[135].
[56]Ibid.

(a) all titles for Stage 1 will issue, including Reserve Number 1;

(b) the subject land titles will no longer remain as they were at the date of the Interim Order; effectively the subject land will no longer exist with the balance of Lot S2 created (with an area of 15.66 remaining);

(c) the reserves will vest in the relevant authorities (Ballarat City Council and the power utility); and

(d) the first defendant will not have the right to enter to carry out works, water quality monitoring or any other activity other than public access to the reserve.

Interests of justice

The defendant submitted that they have completed extensive work to continue development of the subject land, including proportionate stormwater controls. They have obtained a peer review of the stormwater management controls in place as at March 2023, and more recently an independent expert review in July 2023.[57] Additionally, photographs of the site taken on 15 October 2022 and 14 November 2022[58] provided a valuable comparison of the condition of the subject land and the waterway with its current configuration.
[57]‘Affidavit of Cameron Stewart Gull’ (17 April 2023), [26] and Exhibit CSG–2; CSG 28 July Affidavit, n 54, [11]–[12] and Exhibit CSG‑4.
[58]‘Affidavit of Stefan Helmut Fielder‘ (18 October 2022), Exhibit SHF‑1; ‘Affidavit of Stefan Helmut Fielder‘ (17 April 2023), Exhibit SHF‑4.

Vista Estate submitted that it has continued to carry out stormwater quality monitoring as closely as reasonably practicable to the configuration identified in the Interim Order. The defendants argued that the water quality monitoring carried out by the Vista Estate utilising expert consultants, Beveridge Williams & Co Pty Ltd (‘Beveridge Williams’), demonstrated that the stormwater drainage from the subject land is equivalent to or better in quality than the environmental flow in the waterway.[59] During the same period since at least 25 November 2022, the EPA has installed two water quality monitoring stations along the waterway located adjacent to the subject land and downstream of the subject land.
[59]CSG 28 July Affidavit, n 39, Exhibit CSG‑4.

It was argued that the allegations made by the EPA against the defendants in respect of the General Environmental Duty all relate to matters of more than a year in the past.

The defendants expressed concern that the Order and the continued prosecution of this proceeding have reduced the marketability of the subject land (known as Vista Estate), impacting on lot sales and settlements and the ability to divest Lot S2 with planning permission approval to develop the remainder of the residential estate.

EPA’s submissions

The EPA conceded that it was appropriate and in the interests of justice to vary Order 1 of the Interim Order, but not for it to be removed.

The EPA relied on a number of affidavits sworn by its employees in late 2022 and subsequent affidavits, in particular those sworn by EPA officer Kathy Reynolds who has been most closely involved with the investigation.

The EPA argued that the defendants contravened the Interim Order on a number of occasions, including by not providing water monitoring results to the EPA within 48 hours of obtaining those results, or at all until the EPA inquired after them.[60] It further contended that the removal of the northern sediment dam by Vista Estate allowed water to be discharged directly into the waterway.[61] These were among the matters referenced by the EPA in suggesting to the Court that the defendants should be considered unreliable in their compliance with the Interim Order.
[60]‘Affidavit of Kathy Reynolds’ (28 March 2023), [16]–[18].
[61]Ibid, [26], [36]–[42] and [66].

The EPA acknowledged that the Sediment Control Plan, and the Interim Environmental Management Plan (‘IEMP’) at Appendix A therein, is now more closely aligned with accepted industry standards and provides for a more robust environmental management approach across the subject land.[62] Further, the EPA conceded that, given ownership and possession of part or all of the subject land will soon be transferred to third parties, the Interim Order needs to be amended. However, the EPA argued that the complete removal of Order 1 would not be in the interests of justice, given the Vista Estate’s history of non‑compliance with the EP Act and the Interim Order, and the fact that the development of the balance of the subject land is yet to be completed and continues to pose a risk to the environment.
[62]Affidavit of Kathy Reynolds’ (11 August 2023) [29]–[30].

It was argued that the continuation of construction on the subject land and removal of vegetation presents a risk of pollution to the Yarrowee River from sediment‑laden water discharged from the subject land. The EPA, however, did concede that the risk can be managed if the defendants comply diligently with the Sediment Control Plan.[63]
[63]Ibid, [55]–[58].

Consideration

It is clear that there needs to be a variation of the terms of Order 1. This is conceded by the EPA.

As aforementioned, counsel for the defendants indicated that any requirements imposed upon his clients should be in the form of an undertaking to the Court as an alternative to the ongoing operation of Order 1.

Putting aside at this stage the issue of form, the critical issue is whether the terms of Order 1 can be appropriately modified to deal with any ongoing risk to the environment in the context of the claim made against the defendants. This turns on the steps taken by the defendants in response to and generally since the imposition of the Interim Order, and parallel compliance with the conditions of the planning permit with respect to stormwater and drainage.

Assessment of compliance and plans implemented

There are three conditions contained in the planning permit for the subject land (PLP/2019/226/A) which are relevant to the management of stormwater and drainage:

(a) Condition 12 requires that, prior to the commencement of works, a Construction Management Plan (‘CMP’) must be prepared to the satisfaction of the responsible authority (Ballarat City Council) and endorsed as part of the permit. As noted, this did not occur before work started on the subject land, although I was advised that the proposed CMP was lodged but not endorsed at the time the works commenced.

(b) Condition 18 requires that, prior to works commencing on the subject land, drainage, stormwater retention and/or stormwater treatment plans and computations be submitted and approved by the responsible authority. I was not advised of compliance with this condition.

(c) Further, condition 24 deals with sediment and erosion control and provides that “no polluted and/or sediment laden run‑off is to be discharged directly or indirectly into the Yarrowee Creek”. Pollution or litter traps must be provided on site and soil erosion measures must be employed throughout the construction stage of the development[64] to the satisfaction of the Responsible Authority. Again, no specific mention was made of compliance with this condition.

[64]In accordance with ‘Construction Techniques for Sediment Pollution Control’ (Environment Protection Authority, 1991).

Thus, prior to the commencement of the earthworks on the site (and well before the alleged pollution event) there were conditions in place in the planning permit which required certain actions to be taken to control the construction of the site, insofar as stormwater and sediment management were concerned.

I was advised that the reports prepared by Beveridge Williams, in particular the EMP, formed part of the CMP to be endorsed by Ballarat City Council.

As set out in Mr Gull’s affidavit of 28 July 2023, Beveridge Williams, the engineers and consultants for the development, prepared and continued to review management plans with directions for the contractor to implement. On 10 July 2023, Beveridge Williams issued the Sediment Control Plan for the project.[65] Appendix A to this Plan was an IEMP.
[65]CSG 28 July Affidavit, n 39, CSG‑4, 152–181.

On 19 July 2023, Beveridge Williams issued version 12 of the IEMP.[66] An independent review of the stormwater sediment management was commissioned from Kerry Wilkinson of Spiire Australia Pty Ltd.[67] I was advised that version 13 of the IEMP is currently under preparation and will be submitted to Ballarat City Council pursuant to its role as responsible authority for supervision and enforcement of the planning permit.
[66]Ibid, 160–162.
[67]Ibid, 188–198.

The EPA accepts that the version 12 of the IEMP is of the calibre that, if diligently complied with, should deal with the risk associated with stormwater runoff as a result of the construction process.

The state of the evidence before me does provide comfort that the appropriate controls and management arrangements are capable of being implemented. An updated IEMP (version 13) is imminent and will need to be endorsed by Ballarat City Council.

Regarding the specific framework of the Interim Order, it was clear from the submissions of the parties that a genuine dispute arises in respect of paragraph 1(c) of the Order and whether Vista Estate is required to continue carrying out water quality monitoring from the waterway in the interim retarding basins, or whether compliance with that condition is complete. On this issue, the fact that the northern interim retarding basin has been decommissioned and the western interim retarding basin will be replaced as the development progresses (in accordance with the permission approval if granted by Ballarat City Council) are of weight and indicative of general compliance.

There was further dispute regarding the defendants’ compliance with the other aspects of Order 1. Having considered the affidavits filed on behalf of both parties, I am not satisfied that the complaints made of timeliness of reporting or lack of compliance with the work required to implement the terms of Order 1 of the Interim Order have been made out. I agree with the submissions of the defendants that paragraphs 1(a), (b) and (d) of the Interim Order do not serve any ongoing purpose in and of themselves.

However, I disagree with the submissions of the defendants that the stormwater run‑off risk is sufficiently met by compliance with the terms of the planning permit, in particular the CMP which is a requirement of condition 12. Whilst the Planning and Environment Act 1987 (Vic) and the EP Act have some crossover, they are independent regimes. I note the date of the issue of the planning permit in respect of the land, which contains a condition requiring the endorsement of a CMP prior to the commencement of works on the site; a requirement which predates the alleged pollution event.[68]
[68]Permit PLP/2019 226A was issued on 20 November 2020. The alleged pollution event occurred on or about January 2022.

It is also clear to me that the defendants have sought expert engineering advice in order to guide the management of the site consequent to the alleged pollution incident of January 2022.

I accept the submissions of the defendants that the works and plans which have been implemented appear thus far to be satisfactory in terms required by the Interim Order, and that is open to the EPA to seek to impose specific measures including water quality monitoring of the stormwater discharge if the condition of the stormwater discharge falls below that which is required. The EPA has considerable resources at its disposal and extensive powers under the EP Act.

Ongoing risk

There is little doubt that the environment management controls and the professional expertise which have been engaged by the defendants have changed the factual landscape since the alleged pollution event in 2022, and since the Interim Order was made in November 2022. The circumstances have altered from the time when the EPA was motivated to seek an order pursuant to s 310 of the EP Act requiring Vista Estate to cease all stormwater discharge from the subject land until further order. The Interim Order made on 11 November 2022 no longer responds to the current factual circumstances and the consequent risk.

The risk previously identified at the time of the Interim Order has been alleviated by the works done in compliance with that Order. The EPA accepts, as does the Court, that the Sediment Control Plan dated 10 July 2023, and the IEMP version 12 contained in Appendix A therein, are the appropriate tools to meet the risk of sediment adversely affecting the environment, if the plans are diligently complied with.

Applying the principles which guide the variation of interlocutory orders or injunctions (discussed above at [72] and [73]), I am satisfied that the circumstances are no longer as they were at the time the Interim Order was made. I am satisfied on the evidence that substantial improvements have been made on relevant technical expertise which guide the current development of the subject land such that the Court can have confidence that the development of the subject land is being managed closer to the expected standards.

Further, the EPA is undertaking monitoring of the water quality in the vicinity of the subject land which provides an opportunity for it to seek any further or additional orders, either within the proceeding currently before the Court or by utilising the significant range of other enforcement tools available to it under the EP Act.

Therefore, I am satisfied that the ongoing risk is substantially reduced and that the terms of any ongoing obligations imposed on the defendants can be crafted to adequately address that risk, with minimal burden to all of the parties.

Substance and form of ongoing obligations for the defendants

Counsel for the defendants submitted that the entirety of Order 1 should be removed, and that as an alternative his clients would be prepared to provide an undertaking that within 14 days they would submit an updated EMP (version 13) to Ballarat City Council. They would further undertake to provide a copy of the approved EMP, as amended from time to time, to the EPA within seven days of that approval.

The EPA sought the amendment of Order 1 by requiring the defendants to do all things reasonably necessary to comply with the Sediment Control Plan and the IEMP version 12.

I have carefully considered the current state of the subject land, the stage of development (being the imminent completion of Stage 1 and the required sign offs by the Ballarat City Council for compliance) and the work which has been undertaken to remedy the management of the site conditions (to meet the Interim Order and planning conditions). I am of the view that it is still too early to be satisfied that there is no utility in some form of the Interim Order remaining in place.

It is clear modification must be made to address the current state of the development and the ownership status. I not persuaded that an undertaking to provide a copy of the EMP to the EPA, as amended from time to time, is sufficient in all the circumstances. The planning system can, and does, work side by side with the environmental protection regime. There is overlap but one regime does not exclude the other. Reliance alone on the conditions of a planning permit may not always provide a complete answer. The history of this matter demonstrates that observation.

Determination

Given the history of the matter, I am of the view that the amendment which serves the interests of justice in this case is to amend Order 1 by requiring Vista Estate to do all things reasonably necessary to comply with the endorsed IEMP as amended and endorsed by Ballarat City Council from time to time.

CONCLUSION

In respect of the application to strike out the claim (or part thereof), I have determined that the pleadings are adequate and the strike out is not justified.

The application to vary the Interim Order has merit, given the substantial works and efforts completed by the defendants in compliance with the Order and with their obligations under the EP Act subsequent to the alleged pollution incident. However, the Order continues to have some utility in the present circumstances, and as such will be amended in accordance with the above determination.

---

[2023] VSC 552

13 September 2023