Melbourne Strategic Assessment (Environment Mitigation Levy) Regulations 2020

The regulations operate through a series of defined terms and cross-references to other laws. The concept of “prescribed telecommunications infrastructure” in regulation 5 is narrow: it adopts the Commonwealth Telecommunications Act 1997 definitions of “facility”, “facility installation permit” and “installation”. That means only a facility (such as a tower or cable) installed under a facility installation permit is excluded from being a levy event under section 6(f) of the Act. Works for installation of such a facility are also excluded. This is a targeted exemption for licensed carriers, not a broad exemption for all telecom works. The “transport infrastructure reservation” concept in regulation 6 is equally specific: it designates only nine Public Acquisition Overlays (PAO) across five planning schemes, all linked to the Outer Metropolitan Ring/E6 Transport Corridor and its rail connections. These are not generic transport corridors; they are precisely mapped overlays in Hume, Melton, Mitchell, Whittlesea and Wyndham planning schemes. The “environment mitigation information system” concept in regulation 7 imports a precision standard: calculations to 0.001 of a hectare. But the qualification that this standard applies only if input sources support it creates a conditional obligation. If the source data is coarser (for example, older maps with 0.01 ha precision), the system need not achieve the higher standard. This is a pragmatic concession but also a potential source of inconsistency between parcels. The “eligible levy event” concept in regulation 8 is central to staged payment approvals. Only six specific events qualify, all involving Crown land: certification of a plan of subdivision under the Subdivision Act 1988 where no statement of compliance is required before registration; a building permit application for a building on Crown land; approval or variation of a work plan under the Mineral Resources (Sustainable Development) Act 1990 for extractive industry on Crown land; completion of utility infrastructure work on Crown land; and completion of road construction on Crown land. This list creates a gateway: landowners on private land cannot access staged payments for those events, and even on Crown land only those specific triggers count. The “conservation activities” in regulation 10 define how levy funds may be spent: acquisition, management, community education (only for the Southern Brown Bandicoot), and land/biodiversity conservation programs. These are tied to five matters of national environmental significance: Seasonal Herbaceous Wetlands, Spiny Rice-flower, Matted Flax-lily, Golden Sun Moth and Southern Brown Bandicoot. Additionally, native vegetation not in conservation areas can be addressed through acquisition, management and programs (but not community education). The “conservation outcomes” in regulation 11 prescribe 12 matters for the purpose of section 93 of the Act, which likely sets targets or outcomes for the levy scheme. This list includes broader ecological communities (Natural Temperate Grassland, Grassy Eucalypt Woodland) and threatened species including the Growling Grass Frog, Striped Legless Lizard, Button Wrinklewort, Large Fruit Groundsel and Small Golden Moths Orchid. The distinction between activities (regulation 10) and outcomes (regulation 11) is important: funds can be spent on activities for only five items, but the scheme’s success is measured against 12 outcomes.

The regulations directly affect several groups. The primary group is persons who become liable for the environment mitigation levy under the Act. For them, these regulations define when a staged payment is available (regulation 8), what information the levy assessment notice must contain (regulation 9), and which conservation purposes their payments will fund (regulations 10 and 11). Anyone triggering a levy event on Crown land in the levy area faces the compliance burden of understanding whether subdivision certification without a statement of compliance, a building permit on Crown land, an extractive industry work plan, or utility or road infrastructure on Crown land qualifies for staged payment. The regulations impose no duty to apply for staged payment, but they create an opportunity that may affect cash flow planning. Landholders and developers on private land are excluded from staged payments for these events, which may be a cost disadvantage. The second group is telecommunications carriers and infrastructure providers. Regulation 5 impacts them by removing certain facilities from the levy base, reducing their compliance costs and liability. But the exemption is limited to facility installation permits; carriers using other authorisations may still face the levy. The third group is planning authorities and the Secretary administering the Act. They must ensure levy assessment notices contain all prescribed information under regulation 9, which is extensive (at least eleven categories including calculation breakdowns and objection rights). The Secretary must also maintain the environment mitigation information system to the 0.001 hectare standard under regulation 7, subject to data availability. This imposes an administrative cost and potential liability if calculations are inaccurate. The fourth group is conservation organisations and land managers. They may receive levy funds for prescribed activities (acquisition, management, community education, programs) but only for the five matters of national environmental significance listed in regulation 10(2) plus native vegetation not in conservation areas. That constraint may limit which projects can be funded. The fifth group is landowners within the prescribed transport infrastructure reservations (regulation 6). While the reservations themselves are not created by these regulations, the fact that they are prescribed for the Act means the levy may interact with compensation or valuation in those corridors. The six council areas (Hume, Melton, Mitchell, Whittlesea, Wyndham) are directly affected as their planning schemes are referenced for the PAO overlays. Finally, extractive industry operators on Crown land who need work plan approvals under the Mineral Resources (Sustainable Development) Act 1990 will face a levy event that can be staged if they apply. The regulations do not reduce the levy amount; they merely allow time to pay. The overall compliance burden falls on those who must map their activities against the prescribed lists and ensure their Crown land status is clear.

The regulations impose no duties directly on private parties; duties arise from the Act, but these regulations condition how those duties operate. The key duty on the Secretary is to include prescribed information in a levy assessment notice. Regulation 9 requires 11 distinct elements: the liable person’s name, the basis of liability, a description of the levy event, its date, a description of the levy land, land particulars (or stage particulars for staged approvals), the levy amount (or stage amount), a detailed calculation showing component levy amounts, area, habitat area, native vegetation area, scattered tree locations, and rates per hectare or per tree, the payment date (or staged date), a statement that the person may apply for staged payment if eligible, and notice of the right to object within 90 days. This duty on the Secretary is not trivial; failing to include any element may render the notice defective and open to challenge. The right to compensation or adjustment is not mentioned in the regulations but the notice must include the objection right, which is a procedural safeguard. The duty on the levy payer is to pay by the date specified, but the regulations create a right to apply for staged payment approval for the six prescribed Crown land events under regulation 8. That right is conditional: the Secretary must have approved the staged payment under section 26 of the Act, and the levy event must be one of those six. The regulations do not specify the criteria for approval; those are in the Act. The right to object is preserved and must be notified. There is also a duty on the Secretary to maintain the environment mitigation information system to the standard in regulation 7 (0.001 hectare accuracy, subject to input data). This duty may affect the calculation of component levy amounts, which are based on area measurements. If the system cannot achieve that standard due to poor input data, the calculation may be less precise, potentially benefiting or disadvantaging the levy payer depending on rounding. The regulations also define which conservation activities may be undertaken with levy funds; this creates a duty on the Secretary or fund administrators to ensure expenditure aligns with regulation 10. Activities must be for one of the five listed matters of national environmental significance or for native vegetation not in conservation areas. Community education is only permitted for the Southern Brown Bandicoot. The right of conservation organisations to receive funding is implicitly limited by these categories. The regulations do not create any duty to conserve or manage land; they merely prescribe how levy money may be spent. For telecommunications infrastructure, regulation 5 creates an exemption from levy liability for certain facilities; that is a right for carriers to avoid the levy for those installations. But it does not create a duty on the Secretary to exempt; it merely prescribes what infrastructure is excluded from the definition of levy event.

The regulations themselves do not prescribe penalties. The primary Act (Melbourne Strategic Assessment (Environment Mitigation Levy) Act 2020) would contain penalty provisions for non-payment, late payment, or false information. The regulations support enforcement by specifying the content of levy assessment notices, which must include the payment date and the right to object. If a notice fails to include the prescribed information, a levy payer could argue the notice is invalid and the obligation to pay is not triggered. That is a potential enforcement vulnerability for the Secretary. The accuracy standard for the environment mitigation information system (regulation 7) may also be relevant in contests about levy amounts. If the system calculates area to 0.001 hectare but the source data only supports 0.01 hectare, the regulation says the system must calculate to the standard the sources support. That qualification could be used by either side: the Secretary might argue the calculation is as accurate as possible, while the levy payer might argue the system should have used better sources. The regulation does not prescribe a penalty for failure to achieve the standard; the consequence would be evidentiary weight. For staged payments, regulation 8 prescribes which levy events qualify. If a person applies for staged payment for an event that is not prescribed, the Secretary would reject the application. There is no penalty for applying incorrectly, but the person would still need to pay the levy by the original date. The regulations also prescribe conservation activities and outcomes. If levy funds are spent on non-prescribed activities, that could be a breach of the Act or of financial accountability obligations, but the regulations do not impose a penalty. The enforcement mechanism would lie in audit or in the Act’s provisions for recovery of misspent funds. The regulations reference several other Acts (Subdivision Act 1988, Mineral Resources (Sustainable Development) Act 1990, Telecommunications Act 1997 (Cth)), meaning that enforcement of conditions under those laws may indirectly affect levy liability. For example, if a work plan variation under the Mineral Resources Act is approved, it triggers a levy event under regulation 8(d); if the approval is later quashed, the levy event may be retrospectively invalid, but the regulations do not address that. The sunset clause (10 years) means the regulations lapse on 30 June 2030 unless re-made. That creates a time limit on enforcement using these prescriptions; after sunset, the Secretary would have no regulatory basis to rely on these definitions, which could affect outstanding levy liabilities that arise before sunset but are disputed after. The regulations do not have amendment history, so no penalties have been adjusted since 2020.

The regulations explicitly cross-reference at least five other pieces of legislation and five local planning schemes. The most significant interaction is with the Melbourne Strategic Assessment (Environment Mitigation Levy) Act 2020 itself, as these regulations fill gaps in that Act. Sections 6(f), 7(2), 19(4)(b), 26(1)(b), 60(2), 90(1)(c), 93, and 116(h) of the Act are all given content by specific regulations. The interaction with the Commonwealth Telecommunications Act 1997 is direct: regulation 5 adopts the definitions of “facility”, “facility installation permit” and “installation” from that Act, and also the regulatory framework for facility installation permits under Schedule 3. This means changes to Commonwealth telecommunications law will automatically affect the scope of the levy exemption in Victoria. That is a sensible drafting choice but exposes the Victorian levy base to federal regulatory changes. The interaction with the Subdivision Act 1988 is also direct: regulation 8(a) prescribes certification of a plan of subdivision under section 35 of that Act where no statement of compliance is required. This is a specific procedural event: some plans are certified and then registered without a statement of compliance, possibly in Crown land contexts. The interaction with the Mineral Resources (Sustainable Development) Act 1990 is via regulations 8(c) and (d), which reference approval or variation of a work plan under sections 77G and 77HB. This ties the levy to the extractive industry approval process on Crown land. The interaction with planning schemes is through regulation 6, which incorporates by reference Public Acquisition Overlays from the Hume, Melton, Mitchell, Whittlesea and Wyndham planning schemes. This is a mapping exercise: the transport infrastructure reservations are not listed by metes and bounds but by reference to specific PAO designations in each scheme. If those schemes are amended (for example, if a PAO is removed or renamed), the reservation would no longer be prescribed unless the regulations are updated. The regulations also interact with the Subordinate Legislation Act 1994, which imposes a 10 year sunset on statutory rules. The interaction with environmental law at the Commonwealth level is notable: regulations 10 and 11 prescribe matters of national environmental significance (MNES) as listed under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (though the EPBC Act is not cited, the term “matter of national environmental significance” is standard EPBC language). The regulations effectively require levy funds to be spent on conservation of state listed or nationally listed species and communities, aligning state levy expenditure with Commonwealth priorities. The interaction with common law property rights is indirect: by prescribing transport infrastructure reservations, the regulations may affect land valuation or compensation for acquisition, but those are not regulated here. The interaction with the Interpretation of Legislation Act 1984 is noted in the endnotes for style and punctuation rules, but does not affect substantive obligations.

The regulations are at Version No. 001, meaning no amendments have been made since the original making on 30 June 2020. The Table of Amendments in Endnote 2 confirms no statutory rules, subordinate instruments, or Acts have amended these regulations. The Amendments Not in Operation section is blank. This is a relatively new instrument (effective 1 July 2020). The absence of amendments may indicate the levy scheme has operated without need for regulatory adjustment, or that the primary Act has not been amended to require new prescriptions. However, the sunset date of 30 June 2030 is a known future event; if the regulations are not re made, they will lapse. That means any person with ongoing levy obligations should monitor whether the regulations are renewed. The version history shows only one version, which simplifies compliance but also means there is no prior interpretation to draw on. Practitioners should note that the regulations were made on 30 June 2020 and commenced the next day. The speed of commencement suggests no transitional period for the prescriptions. This may have caught some levy payers unaware if they had ongoing projects. The lack of amendment history also means there is no body of regulatory interpretation or administrative guidance developed through amendments. The Secretary’s approach to the accuracy standard (regulation 7) or the staged payment eligibility (regulation 8) will be determined solely by the text and any internal policies. If disputes arise, the absence of amendment history may make it harder to argue that a particular interpretation was intended or has been consistently applied. For practitioners, this is a double edged sword: there is no settled administrative practice to rely on, but also no creeping expansion of the regulatory scope through amendments. The regulations remain as originally drafted, for better or worse. The next opportunity for amendment would be any future statutory rule; until then, the text is static.

The regulations themselves have no recorded litigation. As a subordinate instrument made in 2020, they have been in force for a short period. The Primary Act may have been the subject of litigation, but the regulations have not been judicially considered as far as these notes show. However, potential grounds for a challenge can be identified from the text. The accuracy standard in regulation 7 is conditional on available data; that condition could lead to factual disputes about whether the input sources support the 0.001 hectare standard. A levy payer who receives a notice based on a calculation that relies on coarser data could argue the Secretary failed to use available better sources. Conversely, the Secretary could argue the standard is not mandatory if the sources do not support it. No case has tested this. The scope of the telecommunications exemption in regulation 5 could be litigated if there is a dispute about whether a particular facility was installed under a facility installation permit or under some other authorisation. The definition of “facility installation permit” in the Telecommunications Act 1997 is not reproduced here; the outcome would depend on Commonwealth law. The prescribed transport infrastructure reservations in regulation 6 rely on specific PAO designations within five planning schemes. If the planning schemes are amended (e.g., a PAO is renumbered or removed), a question arises whether the regulation still applies to the former designation. No court has addressed that. The list of eligible levy events for staged payments in regulation 8 may generate disputes about whether a particular activity falls within the description. For example, regulation 8(e) refers to “the completion of utility infrastructure work on Crown land”. If a utility owner disputes that the work is “utility infrastructure” or that the land is “Crown land”, the Secretary would need to prove those elements. Similarly, regulation 8(a) refers to certification of a plan of subdivision where a statement of compliance is not required; determining whether a statement of compliance is required may involve interpretation of the Subdivision Act 1988. There may be litigation about the validity of a levy assessment notice that does not contain all prescribed information under regulation 9. If a notice omits a component, such as the number of scattered tree locations, the liable person might argue the notice is void. No case has yet tested that proposition. The distinction between conservation activities in regulation 10 and conservation outcomes in regulation 11 could be litigated if levy funds are spent on an activity not listed (e.g., a captive breeding program not included as “management” or “program”). The lists are exhaustive, so any expenditure outside them may be ultra vires. Overall, the litigation risk is moderate but has not yet materialised. The regulations are detailed enough to create technical defences for levy payers, but also contain enough Secretary discretion (e.g., on accuracy standard) to allow flexibility. A sharp lawyer could exploit the conditional language and cross-references.

Several provisions in the regulations contain traps for the unwary. The first is in regulation 7: the environment mitigation information system must calculate to 0.001 of a hectare only if the input sources support that standard. That sounds protective, but it means the Secretary may use coarser data without breaching the regulation. A levy payer whose parcel boundary is calculated from a 1:25,000 map may find their area is rounded to 0.01 ha, potentially overstating the levy. Conversely, the Secretary could argue the data available does not support finer precision, and the levy payer has no ground to complain. The qualified standard is a double edged sword. The second gotcha is in regulation 8: staged payment approval is only available for the six specific levy events, and all require Crown land. A developer on freehold land who triggers a levy event by obtaining a building permit cannot apply for staged payment under these regulations, even if the project is large. The Crown land requirement is strict; there is no extension to leasehold or other public land interests. The third gotcha is the narrowness of the telecommunications exemption. Regulation 5 covers only a facility installed under a facility installation permit. Many telecommunications works are carried out under carrier licences or other permits, not facility installation permits. Those works may still be subject to the levy. Carriers should not assume all infrastructure is exempt. The fourth gotcha is the list of conservation activities in regulation 10. Community education is only permitted for the Southern Brown Bandicoot, not for other species or communities. If the Secretary funds a community education program for the Golden Sun Moth, that expenditure may be unauthorised. The fifth gotcha is the distinction between activities and outcomes. Conservation outcomes in regulation 11 include 12 matters, but only five of those are eligible for funding under regulation 10. The remaining seven are “outcomes” but cannot be the subject of expenditure on acquisition or management unless they also fall within native vegetation not in conservation areas (which is unlikely for a lizard or an orchid). This creates a mismatch between what the scheme aims to achieve and what it can spend money on. The sixth gotcha is the reliance on five planning schemes for transport reservations. If a PAO is amended or a new overlay is created for a different corridor, it will not be prescribed unless the regulations are updated. Landowners in new corridors may be surprised that the levy does not apply as they expected, or that it does apply to a corridor they thought was exempt. The seventh gotcha is that the regulations sunset on 30 June 2030. Any levy assessment notices issued after that date may be invalid if the regulations are not re made. Even levy events that occurred before sunset but are assessed after could face legal challenge if the regulations have lapsed. The eighth gotcha is the detail required in a levy assessment notice under regulation 9. If the Secretary omits any element, the notice could be challenged. A levy payer who receives an incomplete notice should object within 90 days; failure to do so may waive the defect. The regulation does not say the notice is void for incompleteness, so the prudent course is to object. Finally, the definitions in regulation 4 incorporate terms from the Telecommunications Act 1997 (Cth) but not from other Acts. There is no definition of “Crown land” in the regulations, so that term likely takes its meaning from the Act or general law, which can be complex. Practitioners need to verify Crown land status with the relevant land registry.

Compliance with these regulations primarily means understanding when the levy applies and what procedural options exist. For a person who may become liable, the first step is to determine whether the event falls within the Act as modified by these regulations. If the event involves telecommunications infrastructure, check whether it is a facility installed under a facility installation permit; if so, it is prescribed infrastructure and not a levy event. For all other development, determine if the land is within a prescribed transport infrastructure reservation under regulation 6. If it is, that may affect the valuation or compensation, but it does not directly trigger the levy. The main compliance action is responding to a levy assessment notice. When the Secretary issues a notice under section 60 of the Act, the notice must contain all elements in regulation 9. The liable person should verify that the notice includes: the name and basis of liability, description and date of the levy event, description of levy land, land particulars, amount (or stage amount), detailed calculation showing component amounts, area, habitat area, native vegetation area, scattered tree locations, rates per hectare per tree, payment date, statement about staged payment eligibility, and notice of objection rights. If any element is missing, the recipient should consider lodging a written objection under section 65 of the Act within 90 days. Do not assume the notice is invalid; an objection preserves rights. The next compliance decision is whether to apply for staged payment. This is only available if the levy event is one of the six prescribed in regulation 8. Confirm the event is occurring on Crown land: that is essential for each of the six (subdivision certification, building permit, extractive work plan or variation, utility infrastructure completion, road construction). If the land is not Crown land, staged payment is not available for those events. The application must be made before the levy payment deadline. The application process is in the Act (section 26), not these regulations, but the eligibility criteria are here. For conservation entities managing levy funds, ensure that expenditure is for prescribed activities under regulation 10: acquisition, management, community education (only for Southern Brown Bandicoot), or land/biodiversity conservation programs. The target matter must be one of the five in regulation 10(2) or native vegetation not in conservation areas. Do not spend funds on other species or communities, even if they are listed as conservation outcomes in regulation 11. Those outcomes are targets, not spending categories. Keep records showing how each expenditure aligns with the prescribed activities and matters. For the Secretary or administrators, ensure the environment mitigation information system meets the accuracy standard. Use the best available data sources; if only coarse data exists, document that fact to justify a lower precision. Maintain a register of which land parcels have data supporting 0.001 ha accuracy and which do not. When issuing levy assessment notices, use a checklist of all required information from regulation 9. Have a template that covers each bullet point automatically. For objections, ensure the notice correctly states the 90 day period. Finally, monitor the sunset date. Any levy assessment for an event after 30 June 2030 may be invalid if the regulations lapse. Consider obtaining legal advice on transitional arrangements if the regulations are not re made. Keeping copies of the regulations as they stand at the time of the levy event will be important for any later dispute. The detailed calculation requirements in regulation 9 mean that levy payers should independently verify the areas and scattered tree counts used. Consider commissioning surveys to challenge the Secretary’s data if it appears inaccurate, especially if the calculation was done at a coarser precision than possible. The burden of proof in an objection is likely on the objector, so gather evidence early.