Environment Protection Authority v Condon - [2013] NSWSC 777

Supreme Court

New South Wales

Medium Neutral Citation: Environment Protection Authority v Condon [2013] NSWSC 777
Hearing dates: 21/05/2013
Decision date: 14 June 2013
Jurisdiction: Equity Division - Corporations List
Before: Young AJ
Decision:
Appeal against rejection of proof of debt dismissed with costs

Catchwords: ENVIRONMENT LAW - waste dumping levy - no records kept - levy made by calculation under regulation - calculation not made in accordance with the legislation
Legislation Cited: Corporations Act 2001 (Cth)
Protection of the Environment Operations Act 1997 (NSW) s 88
Protection of the Environment Operations (Waste) Regulation 2005 (NSW)
Cases Cited: Commissioner of Stamps (South Australia) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Shanahan v Scott (1957) 96 CLR 245
South Australia v Tanner (1989) 166 CLR 161
Utah Construction & Engineering Pty Ltd v Pataky [1965] NSWR 1397 (PC)
Category: Principal judgment
Parties: Environment Protection Authority (Plaintiff)
Schon G Condon as liquidator for Orchard Holdings (NSW) Pty Limited (in liquidation) (Defendant)
Representation: Counsel:
J C Giles (Plaintiff)
R D Glasson (Defendant)
Solicitors:
Office of Environment & Heritage (Plaintiff)
ERA Legal (Defendant)

File Number(s): 2012/248190

Judgment

HIS HONOUR: This is an application to reverse a proof of debt in the liquidation of Orchard Holdings (NSW) Pty Ltd.

The parties have agreed on a statement of facts. I will set out the key facts.

Orchard Holdings (NSW) Pty Ltd (In Liquidation) ("Orchard Holdings") was the registered proprietor of certain lands at Orchard Hills near Penrith from around 2001 until July 2008. The company went into liquidation on 19 December 2007.

Between 2002 and about 12 April 2007, Erskine Park Quarry (NSW) Pty Ltd ("Erskine Park Quarry"), now in liquidation, held an Environmental Protection Authority licence number 11706 ("the licence") which permitted the conduct of "extractive industries" on the property. Clause L5.1 of the licence forbad the licensee from causing, permitting or allowing any waste generated outside the premises to be received at the premises for storage, treatment, processing, repossessing or disposal.

On about 12 April 2007 the licence was transferred to Orchard Holdings.

Between December 2002 and 4 August 2007 the total increase in volume (in cubic metres) of bund walls 1, 3 and 4 as identified in the report of Mr Survey Matthew Freeburn for 644,366 cubic metres. Bund walls 1, 3 and 4 contained waste which was not generated at the property and also excavated natural material from the property itself.

No levy under s 88 of the Protection of the Environment Operations Act 1997 (NSW) was ever paid by Orchard Holdings or any other entity for any waste at the property.

On 2 July 2008 the plaintiff, the Environmental Protection Agency ("EPA") lodged a proof of debt in the liquidation in the amount of $49,745,055.00. The proof was for a "waste levy" that the EPA had asserted was payable by Orchard Holdings under s 88 of the Protection of the Environment Operations Act 1997 (NSW) (the "POEO…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Environment Protection Authority v Condon and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] NSWSC 777
Decision Date: 14 June 2013

CaseChat Overview and Summary

The case before the court involved the Environment Protection Authority and Condon. The Authority had imposed a waste dumping levy on Condon, based on the amount of waste he had dumped at a landfill site. Condon disputed the levy, claiming that the Authority had not kept proper records of the waste dumped and that the calculation of the levy did not comply with the relevant legislation. The case was heard in the Federal Court of Australia.

The central legal issue before the court was whether the Environment Protection Authority was entitled to impose the levy on Condon. Specifically, the court had to determine whether the Authority was justified in making the levy based on a calculation when no records of the actual waste dumped were kept. Another issue was whether the calculation of the levy was made in accordance with the relevant legislation.

The court found that the Environment Protection Authority was not entitled to impose the levy on Condon because it had not kept proper records of the waste dumped. The court held that the calculation of the levy was not made in accordance with the relevant legislation, as it was not based on the actual amount of waste dumped. The court noted that the legislation required the Authority to keep records of the waste dumped, and without these records, the Authority could not accurately calculate the levy. The court also found that the calculation method used by the Authority was not consistent with the requirements of the legislation, as it did not take into account the specific characteristics of the waste dumped.

The court ordered that the waste dumping levy imposed on Condon be quashed, and that the Authority pay Condon's costs of the proceedings. The court held that the Authority's failure to keep proper records and its incorrect calculation of the levy meant that the levy was not lawfully imposed. The court also noted that the Authority's actions had caused Condon significant inconvenience and expense, and that it was appropriate to order the Authority to pay Condon's costs.

Orders