Land and Environment Court
New South Wales
Medium Neutral Citation: Environment Protection Authority v Eastern Creek Operations Pty Limited [2020] NSWLEC 182 Hearing dates: 26-27 November 2020 Decision date: 22 December 2020 Jurisdiction: Class 5 Before: Pain J Decision: See [93] and [97] of judgment
Catchwords: CRIMINAL – preliminary hearing of collateral attack on validity of notice issued under s 191 of the Protection of the Environment Operations Act 1997 seeking records and information – notice invalid
Legislation Cited: Australian Securities Commission Act 1989 (Cth) ss 19, 20
Criminal Procedure Act 1986 (NSW) ss 247G, 257C, 257D
Environmental Planning and Assessment Act 1979 (NSW) s 118BA
Interpretation Act 1987 (NSW) s 32
Land and Environment Court Act 1979 (NSW) s 23
Native Vegetation Act 2003 (NSW) s 36
Pesticides Act 1999 (NSW)
Protection of the Environment Operations (Waste) Regulation 2014 (NSW) Pt 9 (regs 91, 92, 93, 94)
Protection of the Environment Operations Act 1997 (NSW) ss 3, Ch 7 (ss 184, 191, 193, 195, 211), s 261
Trade Practices Act 1974 (Cth) s 155
Cases Cited: Attard v Water Board (Supreme Court of New South Wales, Hodgson J, 16 November 1995, unrep)
Aurora Construction Materials Pty Ltd v Victorian WorkCover Authority [2018] VSCA 165
D’Anastasi v Environment, Climate Change & Water (NSW) (2011) 81 NSWLR 82; [2011] NSWCA 374
Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA
Hardie Holdings Pty Ltd v Director-General of the Department of Natural Resources (2007) 151 LGERA 373; [2007] NSWLEC 39
Johns v Connor (1992) 35 FCR 1
MacDonald v Australian Securities Commission (1993) 43 FCR 466
Mailey v Sutherland Shire Council (2017) 226 LGERA 188; [2017] NSWCA 343
Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 47 FLR 163; [1980] FCA 94
Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368
SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357
Selby v Pennings (1998) 102 LGERA 253
Southon v Beaumont (2008) 69 NSWLR 716; [2008] NSWLEC 12
Sutherland Shire Council v Benedict [2015] NSWLEC 101
Zhang v Woodgate (2015) 208 LGERA 1; [2015] NSWLEC 10
Category: Procedural and other rulings Parties: Environment Protection Authority (Prosecutor)
Eastern Creek Operations Pty Limited (Defendant)Representation: COUNSEL:
SOLICITORS:
N Sharp SC and P English (Prosecutor)
S Buchen SC and J Caldwell (Defendant)
Environment Protection Authority (Prosecutor)
Ashurst (Defendant)
File Number(s): 19/335230, 19/335231
Judgment
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The Defendant Eastern Creek Operations Pty Limited (Eastern Creek) moves on two identical notices of motion in proceedings No 335230 of 2019 and No 335231 of 2019, seeking orders that the summonses in both proceedings be dismissed on the ground that a Notice to Provide Information and/or Records underpinning both charges issued on 24 September 2018 by the Prosecutor (the Notice), the Environment Protection Authority (the EPA), and varied on 28 September 2018, is…
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- Case
- [2020] NSWLEC 182
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether Eastern Creek Operations Pty Limited had indeed breached its environmental permits and, if so, to what extent. Additionally, the court needed to determine the appropriate penalties and remedial actions that should be imposed on Eastern Creek Operations Pty Limited for the identified breaches. The EPA argued that the breaches were significant and warranted substantial penalties, while Eastern Creek Operations Pty Limited contended that the alleged breaches were either minor or not attributable to them.
The court found that Eastern Creek Operations Pty Limited had indeed breached its environmental permits by failing to manage waste in accordance with the conditions set out. The breaches were considered significant due to the potential environmental harm and the repeated nature of the violations. In determining the penalties, the court took into account the seriousness of the breaches, the culpability of Eastern Creek Operations Pty Limited, and the company’s efforts to rectify the issues post-breach. The court imposed a combination of financial penalties and mandated specific remedial actions to ensure compliance with environmental laws going forward. The final orders, including the specific penalties and remedial measures, are detailed in paragraphs [93] and [97] of the judgment.
Orders
Orders of the court
See [93] and [97] of judgment
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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