Tribunal refuses to pause an EPA waste clean-up notice while the land owner challenges it (VCAT, 2026)

What happened

The applicant owns rural land at 35 Swainston Road, Shepparton East. The land has a long history of enforcement action over material stored on it, most of it previously directed at Nonferral Recycling Pty Ltd, a company now in external administration. The company's long-standing sole director, a relative of the owner, also lives on the land and gave evidence to the Tribunal.

The Environment Protection Authority (EPA) issued an Environmental Action Notice, or EAN, under section 274 of the Environment Protection Act 2017. An EAN is a written direction the EPA can issue when it reasonably believes certain circumstances exist, here that industrial waste was on the land unlawfully. The notice listed eight requirements and gave a deadline of 1 October 2026 to lawfully dispose of each group of material: about 70,000 litres of vanadium electrolyte or vanadium sulfate stored in shipping containers, waste plastics, copper sulfate and nickel sulphate, carbon powder and clay, timber pallets, chemical containers and IBCs, electronic waste and waste tyres, each tied to a numbered shed or area marked on a plan attached to the notice.

The owner applied to VCAT for review of the notice within time, and the review was listed for a four-day hearing from 9 to 13 November 2026. The stay hearing itself was adjourned once because the EPA filed material late, and an interim pause of the compliance date was granted on 28 September 2026 until the pause application could be decided.

On the evidence at the stay hearing, some material had been on the land for ten years or more. A considerable amount had been removed over the years, and more had been removed since the EPA's last inspection, although only electronic waste was said to have gone entirely. The EPA relied on fire risk reports from March and August 2023 and a site inspection report of 6 November 2025, and the Tribunal said its assessment was significantly hampered by that reliance on outdated assessments, with no explanation given for the absence of newer evidence beyond a complaint that access to the land had not been arranged just before the hearing. The owner's fire engineer, engaged in October 2026, had not visited the land and worked from photographs and the occupier's affidavit. His conclusion was that things had improved but that he could not say whether they had improved enough, and that a fresh fire risk assessment was needed.

What each side wanted

The owner argued that none of the listed material is "waste" or "industrial waste" under the Act, that he should not have to remove it before the review was decided, and that refusing a pause would make the review pointless because he would face penalties, removal costs and the loss of material he says is valuable. He also argued the fire risk had fallen since the 2023 reports, that there had been no fire since at least 2015, that there was firefighting equipment and a million litres of water on site, and that some of the things said to create fire risk were not even covered by the notice. The EPA opposed the pause, arguing there was no serious question to be tried, that the occupier had said he would remove several categories anyway, and that keeping the material on the land as the fire season began created an unacceptable risk to public health and safety; it also argued the owner could raise his arguments as a "reasonable excuse" defence if ever prosecuted.

What the tribunal decided

The Tribunal refused the application to stay the operation of Environmental Action Notice EAN-00010222, and revoked the stay of that notice that had been granted on 28 September 2026. A stay is an order pausing a decision while it is being challenged; with the interim stay revoked, the notice's requirements took effect again from the date of the order, 16 October 2026.

No money was ordered to be paid either way. The Tribunal recorded that the orders already made for the conduct of the main review proceeding, listed for hearing from 9 to 13 November 2026, were not affected or cancelled by this decision, apart from the interim stay, which expired when the decision was made.

Why the tribunal decided it that way

Section 50(3) of the Victorian Civil and Administrative Tribunal Act 1998 says the Tribunal "may" stay the operation of a decision under review. It sets no test, so the decision is discretionary. Both sides accepted the questions the Tribunal usually works through: would refusing a pause make the review pointless; is there a serious question to be tried; is a pause in the community interest; what harm does the applicant suffer without one; and how soon will the review be heard.

The Tribunal found the first two questions favoured the owner. Some material would probably still be on the land at the November hearing, so the review would keep some use, and that factor normally carries the most weight. It rejected the EPA's argument that a "reasonable excuse" defence in a later prosecution could stand in place of a review, saying the proper place to challenge the merits of a notice is the review process, not a court enforcing the notice. On the second question, whether the material is industrial waste needs a multi-factorial assessment on fuller evidence and argument, so there was a serious question for the main hearing. The Tribunal also accepted that complying would cost the owner a significant amount and expose him to prosecution risk, which weighed in favour of a pause.

What decided the case was the community interest. The EPA's material described a fire risk at the land of "high to extreme" because of the volume of chemicals and the inadequate separation between buildings and stockpiles. The owner's own expert accepted that the two risks identified by the EPA remained relevant, that a grass fire or a wind-blown ember was possible even outside a bushfire overlay, and that he could not say how large the remaining risk was without a new assessment. The Tribunal turned to the precautionary principle in section 20 of the Environment Protection Act 2017: where there are threats of serious irreversible harm to human health or the environment, a lack of full scientific certainty should not be a reason to postpone measures that prevent or reduce those threats. Even if a fire was unlikely, the consequences could be significant, and removing the listed material would reduce the risk whether or not it removed it.

The Tribunal accepted that the accountability principle in section 22 also mattered and that the information it was given was less than ideal, but said that could not stop it deciding on what it had. Timing mattered not because the wait was long, but because the November hearing and any decision after it would fall well inside the fire season. Weighing everything, the Tribunal said it was not appropriate for the community to carry the risk of a fire made worse by material that the notice required to be taken away, and so declined to extend the pause.

What this means if you are in a similar position

If you are in a similar position and a government body has given you a notice to do something, the notice usually keeps operating from the day it is issued. Asking a tribunal to review it does not freeze it. Pausing a notice takes a separate order, and this decision shows that such an order is discretionary: the tribunal weighs whether a refusal would make your review pointless, whether there is a real question to be decided, what the pause would cost you, how soon the review will be heard, and what the pause would mean for everyone else.

This decision also shows how much the evidence on each side can matter in that weighing. The tribunal criticised the regulator for relying on assessments that were years old, and it accepted the owner's expert as credible, yet the owner's case was not helped by expert evidence that was expressly preliminary, prepared without a site visit, and unable to put a figure on the risk that remained. Where a statute contains a precautionary principle, uncertainty about how big a risk is can count against delay rather than in favour of it.

In this kind of dispute most people start before any tribunal application, by answering the notice in writing within the time the regulator allows: setting out what the material is, what has already been done, what is disputed and why, and asking for the time or the change they want. If the body will not shift, the next step most people take is an application for review at the tribunal, together with a separate request to pause the notice if the deadline falls before the hearing.

How to apply: our step-by-step guide to a VCAT application. More decisions: VCAT cases and other civil disputes.

Source: Rigoli v Environment Protection Authority [2026] VCAT 863 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.