Environment Protection Authority v Eastern Creek Operations Pty Limited - [2020] NSWLEC 182

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
Commissioner of Taxation (Cth) v Australia & New Zealand Banking Group Ltd; Smorgon v Commissioner of Taxation (Cth) (1979) 143 CLR 499
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:
N Sharp SC and P English (Prosecutor)
S Buchen SC and J Caldwell (Defendant)
SOLICITORS:
Environment Protection Authority (Prosecutor)
Ashurst (Defendant)

File Number(s): 19/335230, 19/335231

Judgment

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…

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.

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Details

Case: [2020] NSWLEC 182
Decision Date: 22 December 2020

CaseChat Overview and Summary

The case of Environment Protection Authority v Eastern Creek Operations Pty Limited involved the Environment Protection Authority (EPA) bringing an action against Eastern Creek Operations Pty Limited for breaches of environmental laws. The dispute centred on allegations that Eastern Creek Operations Pty Limited had failed to comply with its environmental permits, specifically in relation to waste management practices at its facility. The matter was heard in the Supreme Court of New South Wales.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 Commissioner of Taxation (Cth) v Australia & New Zealand Banking Group Ltd; Smorgon v Commissioner of Taxation (Cth) (1979) 143 CLR 499 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: N Sharp SC and P English (Prosecutor) S Buchen SC and J Caldwell (Defendant) SOLICITORS: Environment Protection Authority (Prosecutor) Ashurst (Defendant)
File Number(s):	19/335230, 19/335231