Environment Protection Authority v Fair - [2024] NSWLEC 124

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Environment Protection Authority v Fair [2024] NSWLEC 124
Hearing dates: 13 November 2024
Date of orders: 22 November 2024
Decision date: 22 November 2024
Jurisdiction: Class 4
Before: Preston CJ
Decision:
The Court makes the following orders:
(1) Declare that Mr Mark Fair breached s 48(2) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) by being the occupier between 2 June 2023 and 1 July 2023 of a storage unit at a storage facility at 139 Wytarra Drive, North Albury, in which more than 500 waste tyres were stored, without being the holder of a licence under the POEO Act that authorised that activity to be carried on at those premises.
(2) Discharge, from the date of these orders, the orders made by the Court by consent of the applicant and first respondent on 20 December 2023.
(3) Otherwise dismiss the proceedings.
(4) Order the applicant to pay the first respondent's costs of the proceedings.

Catchwords:
ENVIRONMENTAL LAW – waste storage – storage of waste tyres in enclosed storage units at storage facilities – whether scheduled activity requiring licence – whether pollution of land – order to remedy or restrain breach – whether includes payment of compensation to third party

Legislation Cited:
Land and Environment Court Act 1979 (NSW), s 20
Protection of the Environment Operations Act 1997 (NSW), s 48, 142A, Schedule 1, Dictionary
Protection of the Environment Operations (General) Regulation 2022 (NSW), cl 133

Cases Cited:
Director-General, Department of Environment, Climate Change and Water v Venn (2011) 210 LGERA 300; [2011] NSWLEC 118
Great Lakes Council v Lani (2007) 158 LGERA 1; [2007] NSWLEC 681
Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd (1991) 74 LGRA 265
Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd(No 2) (1992) 75 LGRA 210

Category: Principal judgment
Parties: Environment Protection Authority (Applicant)
Mark Garry Fair (First Respondent)
State of New South Wales (Second Respondent)
Representation:
Counsel:
S Erian (Applicant)
T Boyle (Second Respondent)
Solicitors:
Environment Protection Authority (Applicant)
DEAN Lawyers (First Respondent)
State of New South Wales (Second Respondent)

File Number(s): 2023/438825
Publication restriction: NIL

JUDGMENT

Waste tyres are stored at storage facilities

Mr Fair has caused or permitted the storage of waste tyres at four properties in the Riverina region of New South Wales. The four properties are 27 Jarick Way, Jindera (Jarick Way), 11-13 Stockwell Road, Jindera (Stockwell Road), 111 Catherine Crescent, Lavington (Catherine Crescent) and 139 Wytarra Drive, North Albury (Wytarra Drive). A storage facility is operated at each of the properties by different operators, being Leading Property Group Pty Ltd at Jarick Way, Ian Ritchie Real Estate at Stockwell Road, CCS Storage Pty Ltd at Catherine Crescent, and National Storage (Operations) Pty Ltd (National Storage) at Wytarra Drive.
Mr Fair entered into a storage agreement with the operator of each storage facility entitling him to store goods in each…

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: [2024] NSWLEC 124
Decision Date: 22 November 2024

CaseChat Overview and Summary

Environment Protection Authority sought relief against Mr Mark Fair in relation to the storage of waste tyres. The dispute was heard in the Land and Environment Court of New South Wales. The primary contention was whether Mr Fair had breached specific provisions of the Protection of the Environment Operations Act 1997 by storing more than 500 waste tyres without the requisite licence. The Environment Protection Authority argued that Mr Fair, as the occupier of a storage unit, failed to comply with the statutory requirements that mandated a licence for such activities.

The court examined the relevant sections of the Protection of the Environment Operations Act and assessed the evidence regarding Mr Fair's occupancy of the storage unit and the presence of the tyres. The court determined that Mr Fair did not hold the necessary licence to store the waste tyres, thus breaching the statutory provisions. The court also considered the previous orders made by consent, which were subsequently discharged as per the final orders.

The court ruled that Mr Fair was indeed in breach of the specified statutory provision by failing to hold a licence for storing more than 500 waste tyres. Consequently, the court declared this breach and discharged the earlier consent orders. The proceedings were dismissed in all other respects, and the Environment Protection Authority was ordered to pay Mr Fair's costs.

Orders

Orders of the court

The Court makes the following orders:

(1) Declare that Mr Mark Fair breached s 48(2) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) by being the occupier between 2 June 2023 and 1 July 2023 of a storage unit at a storage facility at 139 Wytarra Drive, North Albury, in which more than 500 waste tyres were stored, without being the holder of a licence under the POEO Act that authorised that activity to be carried on at those premises.

(2) Discharge, from the date of these orders, the orders made by the Court by consent of the applicant and first respondent on 20 December 2023.

(3) Otherwise dismiss the proceedings.

(4) Order the applicant to pay the first respondent's costs of the proceedings.

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 Fair [2024] NSWLEC 124
Hearing dates:	13 November 2024
Date of orders:	22 November 2024
Decision date:	22 November 2024
Jurisdiction:	Class 4
Before:	Preston CJ
Decision:	The Court makes the following orders: (1) Declare that Mr Mark Fair breached s 48(2) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) by being the occupier between 2 June 2023 and 1 July 2023 of a storage unit at a storage facility at 139 Wytarra Drive, North Albury, in which more than 500 waste tyres were stored, without being the holder of a licence under the POEO Act that authorised that activity to be carried on at those premises. (2) Discharge, from the date of these orders, the orders made by the Court by consent of the applicant and first respondent on 20 December 2023. (3) Otherwise dismiss the proceedings. (4) Order the applicant to pay the first respondent's costs of the proceedings.
Catchwords:	ENVIRONMENTAL LAW – waste storage – storage of waste tyres in enclosed storage units at storage facilities – whether scheduled activity requiring licence – whether pollution of land – order to remedy or restrain breach – whether includes payment of compensation to third party
Legislation Cited:	Land and Environment Court Act 1979 (NSW), s 20 Protection of the Environment Operations Act 1997 (NSW), s 48, 142A, Schedule 1, Dictionary Protection of the Environment Operations (General) Regulation 2022 (NSW), cl 133
Cases Cited:	Director-General, Department of Environment, Climate Change and Water v Venn (2011) 210 LGERA 300; [2011] NSWLEC 118 Great Lakes Council v Lani (2007) 158 LGERA 1; [2007] NSWLEC 681 Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd (1991) 74 LGRA 265 Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd(No 2) (1992) 75 LGRA 210
Category:	Principal judgment
Parties:	Environment Protection Authority (Applicant) Mark Garry Fair (First Respondent) State of New South Wales (Second Respondent)
Representation:	Counsel: S Erian (Applicant) T Boyle (Second Respondent) Solicitors: Environment Protection Authority (Applicant) DEAN Lawyers (First Respondent) State of New South Wales (Second Respondent)
File Number(s):	2023/438825
Publication restriction:	NIL