Environment Protection Authority v Grantley Shane Douglass

[1999] NSWLEC 68

Land and Environment Court

of New South Wales

CITATION:

Environment Protection Authority V Grantley Shane Douglass [1999] NSWLEC 68

PARTIES

APPLICANT
Environment Protection Authority

RESPONDENT
Grantley Shane Douglass

NUMBER:

40019 of 1999

CORAM:

Pearlman J

KEY ISSUES:

:- application - jurisdiction - enforce a right

LEGISLATION CITED:

application - jurisdiction - enforce a right

DATES OF HEARING:

01/25/1999; 01/27/1999; 01/29/1999

EX TEMPORE JUDGMENT DATE:

01/29/1999

LEGAL REPRESENTATIVES:

APPLICANT
Mrs J C Kelly

SOLICITORS
Environment Protection Authority

RESPONDENT
in person

SOLICITORS
N/A

JUDGMENT:


IN THE LAND AND 40019 of 1999
ENVIRONMENT COURT Pearlman J
OF NEW SOUTH WALES 29 January 1999

ENVIRONMENT PROTECTION AUTHORITY
Applicant
v
GRANTLEY SHANE DOUGLASS
Respondent

JUDGMENT

1. These proceedings involve a class 4 application brought by the Environment Protection Authority (“EPA”) seeking injunctions restraining the respondent, Mr G S Douglass, from hindering remediation activities being carried out on land known as 13 Box Avenue, Wilberforce.

2. The parties have reached an agreement as to certain undertakings which the respondent will give to the Court.

3. Mrs Kelly, for the EPA, has submitted that the Court's power to entertain these proceedings and to make the consent orders sought arises under s 20(2)(a) of the Land and Environment Court Act 1979, which provides as follows:-


“20. (2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of proceedings -

(a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract;”

4. Mrs Kelly submitted that the right to be enforced arises under s 36(1) of the Environmentally Hazardous Chemicals Act 1985 (now repealed but in force at the relevant time), which provides as follows:-

“36. (1) Where the Authority has reasonable grounds to believe that any premises are becoming or have become contaminated by reason of the carrying on of any prescribed activity in relation to a chemical or any chemical waste, the Authority may, by its servants or agents, enter into or upon the premises and take such prescribed remedial action as is reasonable in the circumstances.”


4. Mrs Kelly relied on Oxley County District Council v Macleay River County District Council & Anor (1964) 10 LGRA 83 and also on Dowse v Wynyard Holdings Ltd (1962) NSWR 252 to suggest that it is open to the Court to grant an injunction to permit a right to be exercised.

5. That interpretation of s 20(2) requires the word "enforce" to be read as not merely allowing jurisdiction to require a person to exercise a right, but also to confer jurisdiction to make such orders as are necessary to permit that right to be carried out. I accept that argument.

6. (Mr Douglass addressed and indicated that he understood and accepted the undertakings which he was to give).

7. I make the following orders:

(1) I note the undertakings given by Mr Douglass in paragraphs 1, 2, 3 and 4 of the consent orders.

(2) I order that each party pay its own costs of these proceedings.

(3) I note the matters set out in paragraphs A to D of the consent orders.

(4) Upon the undertakings given by the respondent the class 4 application is dismissed.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 2 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE M L PEARLMAN AM.

Associate