Environment Protection Authority v Hanna
[2010] NSWLEC 254
•6 December 2010
Land and Environment Court
of New South Wales
CITATION: Environment Protection Authority v Hanna [2010] NSWLEC 254
This decision has been amended. Please see the end of the judgment for a list of the amendments.PARTIES: APPLICANT
RESPONDENT
Environment Protection Authority
Dib Hanna Abdallah HannaFILE NUMBER(S): 40811 of 2010 CORAM: Craig J KEY ISSUES: INJUNCTIONS AND DECLARATIONS :- interlocutory injunction - usual undertaking as to damages - form of order LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Protection of the Environment Administration Act 1991, s 5
Protection of the Environment Operations Act 1997, s 143CASES CITED: Environment Protection Authority v Hanna [2010] NSWLEC 98 DATES OF HEARING: 6 December 2010 EX TEMPORE JUDGMENT DATE: 6 December 2010 LEGAL REPRESENTATIVES: APPLICANT
P Barley (Solicitor)
SOLICITORS
Department of Environment, Climate Change and WaterRESPONDENT
No appearance
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESCRAIG J
6 December 2010
40811 of 2010 ENVIRONMENT PROTECTION AUTHORITY v HANNA
EX TEMPORE JUDGMENT
1 HIS HONOUR: The Environment Protection Authority (the Authority) has commenced proceedings in Class 4 of this Court’s jurisdiction seeking declaratory and injunctive relief against Dib Hannah Abdallah Hanna. The relief that it seeks is founded upon alleged breaches by Mr Hanna of s 143 of the Protection of the Environment Operations Act 1997 (the Act). In short it is alleged that Mr Hanna has breached the Act by transporting and dumping waste at places which are neither approved nor licensed for the receipt of the dumped waste.
2 The Authority’s proceedings have been fixed for final hearing in March 2011. An appearance has been entered on behalf of Mr Hanna by Mr Safi, solicitor, who apparently informed the Registrar at an earlier call over that the hearing would be defended. The hearing has been fixed on that basis. However, no evidence has yet been filed on behalf of the defendant.
3 The Authority now moves by Notice of Motion for interlocutory relief. It is said that the conduct of Mr Hanna is demonstrated to be such that, pending the final hearing of the proceedings, it is likely that further dumping of waste will occur in breach of the Act and, importantly, contrary to the public interest.
4 The order sought in the Notice of Motion for interlocutory relief is framed as follows:
- “An order that until judgment or further order, the Respondent be restrained from transporting waste to a place that cannot lawfully be used as a waste facility for that waste”
That order is, in terms, identical to the order sought by way of final relief in the Authority’s summons commencing these proceedings.
5 The Notice of Motion first came before me on Friday last, 3 December, as Duty Judge. At that time there was no appearance by or on behalf of Mr Hanna. The solicitor appearing for the Authority informed me of a recent conversation had with Mr Safi, to the effect that he would not be appearing at the hearing of the Notice of Motion and foreshadowed that he would be terminating his retainer from Mr Hanna. Notwithstanding what I was told from the bar table, the Authority’s solicitor was not then in a position to prove service of its Motion for interlocutory relief.
6 The matter has come before me today for the purpose of determining the Authority’s Notice of Motion. Again, there was no appearance by or on behalf of Mr Hanna, but on this occasion the Authority has been able to prove service.
7 On the hearing before me a number of affidavits sworn by officers of the Authority have been read. These indicate that on at least two occasions building waste, comprising clay, soils, plastic, bricks and timber have been taken either to a roadside location at Agnes Banks in Western Sydney and dumped or in the case of the other incident, taken to land under the control of Ku-ring-gai Council adjacent to the North Shore Railway Line at Killara and then dumped. Neither of those locations enjoyed the benefit of any development consent enabling building or excavation waste to be deposited upon them. It would also appear that neither place was licensed under the provisions of the Act to receive such waste.
8 Also drawn to my attention is the fact that on 23 June 2010, Mr Hanna was convicted in this Court of four offences against s 143 of the Act (Environmental Protection Authority v Hanna [2010] NSWLEC 98). I happened to be the Judge who heard that matter and I had recorded in the judgment that Mr Hanna had previously been convicted in Liverpool Local Court of three offences against s 143.
9 I am satisfied on the evidence before me that there is a serious question to be tried. That question is as to whether the conduct alleged by the prosecutor constitutes a breach of s 143 of the Act and if that breach is established whether an order restraining that conduct ought to be made in accordance with s 252 of the Act. Clearly, the proven conduct of Mr Hanna by reason of his prior convictions and the evidence led in the present proceeding which for the purpose of the present hearing is uncontested, suggests that the balance of convenience favours the making of an order.
10 The applicant has not proffered the usual undertaking as to damages. It points to the fact that it is a body corporate constituted by s 5(1) of the Protection of the Environment Administration Act 1991. By subsection (2) of s 5, it is a statutory body representing the Crown. As such, it may be relieved from offering an undertaking as to damages in circumstances such as the present.
11 Moreover, it was submitted that in light of the limited terms of the interlocutory relief proposed to be granted, the likelihood of the defendant sustaining damage would appear to be non-existent. While it is, in theory, possible that the respondent might suffer some damage, I do not believe that the sustaining of any damage is, in reality, likely to occur. I also take into account the fact that the proceedings are brought by the Authority in the public interest with the result that an undertaking as to damages is not always required in such circumstances: LECR 4.2(3).
12 In the circumstances outlined in the preceding paragraphs, particularly having regard to the status of the applicant, I am prepared to make the order sought in the absence of the usual undertaking as to damages.
13 The terms of the order sought by the Authority in its Notice of Motion have troubled me. That proposed order does no more than require, in terms, obedience to s 143. An interlocutory order in such general terms cannot, in my opinion, be sustained.
14 I have indicated a preparedness to make an appropriately framed order. Given that the order is interlocutory and, in principle, meant to do no more than preserve the status quo, I have indicated to the Authority’s solicitor that I would only be prepared to make an order that is reflective of the use of the vehicles identified in the evidence as having been used by Mr Hanna for the purpose of carrying waste; that describes the types of material that have been dumped in alleged contravention of s 143 and that identifies by appropriate description, the place or places that cannot lawfully be used for the dumping or depositing of that material.
15 I have now been provided by a form of order which, in light of the constraints that I have thought appropriate to impose upon its form, seem to be appropriate. I therefore make the following order:
1. Order that, until further order, the Respondent be restrained from using a tipper truck with the NSW registration plate ‘BF 57 FN’ or ‘BC 09 MO’ or ‘AH 40 GW’ to transport building or excavation waste, comprising any of the following: clay, soil, brick, concrete, glass, tiles, timber or asbestos, to any place for which no development consent under the Environmental Planning and Assessment Act 1979 or environment protection licence under the Protection of the Environment Operations Act 1997 is held when such consent or license is required for the receipt of that waste.
2. Respondent to pay the Applicant’s costs of this motion.
08/12/2010 - Citation change Land and Environment Protection Authority to Environment Protection Authority - Paragraph(s) Coversheet
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