Environment Protection Authority v Leaway Pty Limited - [2006] NSWLEC 44

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Leaway Pty Limited [2006] NSWLEC 44

PARTIES:
APPLICANT
Environment Protection Authority
RESPONDENT
Leaway Pty Limited

FILE NUMBER(S): 40719 of 2005

CORAM: Preston CJ

KEY ISSUES:
Civil Enforcement :- licensed waste facility - obligation to pay contributions for waste received and disposed of at facility - breach of - order to remedy breach by payment of contributions and interest on unpaid contributions.
Civil Enforcement:- licensed waste facility - licence condition and regulatory requirements to prepare and provide information and reports to the Environment Protection Authority - breach of - order to remedy breach by preparing and providing required information and reports.
Waste Disposal:- licensed waste facility - obligation to pay contributions for waste received and disposed of at facility - licence condition and regulatory requirements to prepare and provide information and reports to the Environment Protection Authority - breaches of - orders to remedy and restrain breaches.

LEGISLATION CITED: Protection of the Environment Operations Act 1997, s 88, s 252(6)
Protection of the Environment Operations (Waste) Regulation 1996, reg 18(1)(b), reg 18(4)(a), reg 19, reg 20(b), reg 23, reg 23A, reg 24(1)

DATES OF HEARING: 01/02/2006

EX TEMPORE JUDGMENT DATE: 02/01/2006

LEGAL REPRESENTATIVES: APPLICANT
Mr J Kirk (barrister)
SOLICITOR
Environment Protection Authority
RESPONDENT
No appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

WEDNESDAY 1 FEBRUARY 2006

40719 OF 2005

ENVIRONMENTAL PROTECTION AUTHORITY V LEAWAY PTY LIMITED
JUDGMENT

1 HIS HONOUR: The applicant, the Environment Protection Authority, (“EPA”), has brought civil enforcement proceedings in Class 4 of the Court’s jurisdiction to remedy and restrain breaches of the Protection of the Environment Operations Act 1997 (“the Act”) and the Protection of the Environment Operations (Waste) Regulation 1996 ( “the Regulation”).

2 The breaches concern obligations of the respondent, Leaway Pty Limited, as occupier of a licensed waste facility under an environment protection licence and under the Act and the Regulation, to prepare and provide to the applicant certain information and records in relation to the receipt and disposal of waste at the facility and to pay contributions and interest in respect of waste received and disposed of at the facility.

The Applicant’s Claim

3 The applicant commenced the proceedings on 6 July 2005 by an application class 4, being the appropriate originating process for this type of proceeding. The applicant claimed relief seeking, amongst other relief:

Protection of the Environment Operations Act

Protection of the Environment Operations (Waste) Regulation

2. An order that the Respondent pay to the Applicant the sum of $47,418.53, being the amount owed by the Respondent to the Applicant pursuant to section 88 of the Act with respect to the last quarter of 2002 and the first quarter of 2003.

3. An order that the Respondent pay to the Applicant interest on the sum payable pursuant to order 2 from 28 May 2004 calculated in accordance with clause 19 of the Regulation...”.

4 The applicant also claimed orders that the respondent provide to the applicant certain information and records pertaining to the waste received at the respondent’s premises.

History of the proceedings

5 The application was served personally on the respondent on 20 July 2005. On 20 August 2005, the respondent by its solicitor, Brooks & Co, faxed to the Court registry a notice of appearance of the respondent.

6 On 3 August 2005, the application was returnable before the Court. Bignold J presided at the call over. Ms J Moore, a solicitor employed by the applicant, appeared for the applicant. Mr S Berveling of counsel appeared for the respondent, instructed by Brooks & Co, solicitors. By consent, Bignold J made orders in accordance with the short minutes of order handed up in court and signed by his Honour. The orders were that:

2. The proceedings be adjourned until 17 August for further directions.”

7 Later, on 3 August 2005, the applicant filed its amended application class 4. The amended application related to a correction of the licence number stated in paragraph 1 of the prayers for relief.

8 On 4 August 2005, the respondent filed in court and served on the applicant the original of the notice of appearance by its solicitors, Brooks & Co., dated 2 August 2005 that had previously been faxed to the Court.

9 On 17 August 2005, the matter came before Bignold J. Mr J Kirk of counsel appeared for the applicant and Mr S Berveling of counsel appeared for the respondent. By consent Bignold J ordered:

“1. The parties must exchange categories of discovery by 24 August 2005.

2. The parties must provide verified lists of documents for discovery by 7 September 2005.

3. The parties must make documents available for inspection by 21 September 2005.

4. The applicant file and serve further affidavits by 12 October 2005.

5. The respondents file and serve all affidavits and other evidence on which it intends to rely on in these proceedings by 2 November 2005.

6. The proceedings are adjourned until 9 November 2005.

7. Applicant to file and serve points of claim by 31 August 2005.

8. Respondent to file and serve points of defence by 14 September 2005”.

10 On 26 August 2005, the applicant provided to the respondent’s solicitor the applicant’s categories of discovery.

11 On 31 August 2005, the applicant filed in court and served on the respondent’s solicitor the applicant’s points of claim. Of relevance to the claims by the applicant that the respondent is liable to pay contributions and interest (prayers for relief 1 to 3 of the amended application Class 4) are the following parts of the pleading:

Protection of the Environment Operations Act

4. On or about 30 August 2002, the Applicant issued the Respondent with Environmental Protection Licence No. 11680 (“the Licence”) under section 55 of the POEO Act in respect of the premises.

5. The Respondent has operated a waste facility at the Premises since about 30 August 2002 (“the Facility”).

6. Section 88 of the POEO Act provides that the occupier of each licensed waste facility (except those used solely for reusing, recycling or reprocessing waste) is liable to pay contributions as prescribed by the regulations, at such intervals and in such manner as the Applicant directs in writing.

7. The Facility at the Premises has not, at any material time, been used solely for reusing, recycling or reprocessing waste.

Protection of the

Environment Operations (Waste) Regulation

9. In the premises, the Respondent was obliged to pay the contributions prescribed by the Waste Regulation in relation to all waste received and disposed of at the Facility.

23. In light of the information provided by the Respondent in relation to the two quarters from 1 October 2002 to 31 March 2003, the Respondent was required to pay the sum of $47,418.53 as contribution pursuant to section 88 of the Act with respect of those quarters.

24. The Applicant has sought payment from the Respondent of the amount referred to in the preceding paragraph.

Payment was sought by letters of 21 May 2004 and 16 May 2005.

25. The Respondent has:

a. failed to pay the amount sought by the Applicant as referred to in the preceding two paragraphs;

b. failed to pay any amount by way of contribution under s 88 of the POEO Act in relation to the Facility in respect of the period 1 October 2002 to 31 March 2003.

27. The Respondent has not paid any interest on the contributions owing in relation to the Facility.

29. In the premises the Applicant seeks:

a. the orders set out in the Amended Application dated 7 July 2005;

b. interest on the amount/s referred to at para 6 of the Amended Application, calculated in accordance with clause 19 of the Waste Regulation or, in the alternative, with NSW Supreme Court Rates”.

12 On 5 September 2005, the respondent’s solicitor provided to the applicant the respondent’s categories of discovery.

13 On 13 September 2005, the respondent’s solicitor provided to the applicant the respondent’s unsigned and unfiled points of defence.

14 On 22 September 2005, the respondent filed in court its points of defence.

15 On 6 October 2005, the applicant wrote to the respondent’s solicitor seeking a verified list of documents, the filed points of defence and notifying objections to the amended points of defence that had been foreshadowed by the respondent.

16 On 7 October 2005, the applicant wrote to the respondent’s solicitor seeking particulars of the points of defence provided to the applicant by letter dated 13 September 2005.

17 On 12 October 2005, the applicant wrote to the respondent’s solicitor enclosing the applicant’s verified list of documents and requesting a filed copy of the points of defence and the respondent’s verified list of documents.

18 On 12 October 2005, the respondent’s solicitor wrote to the applicant’s solicitors indicating that the respondent intended to provide further amended points of defence.

19 On 9 November 2005, the proceedings came before the Court before Pain J. Ms Moore, solicitor, appeared for the applicant. There was no appearance for the respondent. Ms Moore had earlier telephoned the respondent’s solicitor’s office enquiring as to the reason for the non-appearance of a solicitor from that office for the respondent but was unable to speak to the solicitor with the carriage of the matter. Pain J made the following orders:

2. The Respondent must provide the Applicant a verified list of documents for discovery by Wednesday 16 November 2005.

3. The Respondent must make the documents identified in its verified list of documents available for inspection by no later than Monday 21 November 2005.

4. The proceedings are adjourned until Wednesday 23 November 2005 at 9.45am.”

20 The Court also noted that in the absence of any of the orders above being complied with that the applicant would on 23 November 2005 apply for judgment on orders 2 and 3 of the amended application class 4 dated 7 July 2005.

21 On 9 November 2005, the applicant wrote to the respondent’s solicitor informing them of the orders made by Pain J that day and enclosing a copy of the short minutes of orders.

22 Also on 9 November 2005, the applicant wrote to the respondent’s solicitor informing them that the applicant had yet to receive filed points of defence in the matter.

23 On 18 November 2005, the applicant wrote to the respondent’s solicitor forwarding a sealed copy of the orders of the Court of 9 November 2005.

24 On 23 November 2005, Ms Moore, solicitor for the applicant, spoke with the respondent’s solicitor’s office but was told that those solicitors no longer acted for the respondent. However, Ms Moore was also told that the solicitors had sent the correspondence that it had received from the applicant to the respondent.

25 On 23 November 2005, after the conversation referred to in the preceding paragraph, the proceedings came before the Court before Pain J. Mr Kirk appeared for the applicant. There was no appearance for the respondent. Mr Kirk informed the Court of the conversation that Ms Moore had had and for which I have referred above. Pain J made the following orders:

“1. The Respondent to comply with the orders made on 9 November by 12 noon on Friday 2 December 2005.

2. The Respondent pay the Applicant’s costs of today.

3. The matter is adjourned to Wednesday 7 December 2005 at which time the Court notes that if the Respondent has not complied with order 1 above the Applicant will apply for judgment on orders 1 to 5 of the Amended Application Class 4 dated 7 July 2005”.

26 On 28 November 2005, the applicant wrote to the respondent, with a copy to the respondent’s former solicitors Brooks & Co., enclosing a copy of the orders made by Pain J on 23 November 2005.

27 On 30 November 2005, the applicant filed a notice of motion dated 29 November 2005. That notice of motion sought orders including:

“1. That the Court grant the Applicant judgment in the form of the orders sought in paras 1 to 5 inclusive of the amended application filed on 3 August 2005.

2. That the Respondent pay the Applicant’s costs of the proceedings.”

28 The notice of motion was served on the respondent.

29 On 7 December 2005, the proceedings came before the Registrar of the Court. Amongst other orders, the Registrar directed that the Registry write to the respondent and advise that the matter had been listed today and was stood over to 15 December 2005 before a judge for the hearing of the notice of motion dated 29 November 2005 and filed on 30 November 2005.

30 The applicant sent a letter to the respondent on 7 December 2005 advising of the order of the Registrar that the notice of motion had been stood over to 15 December 2005.

31 A letter was also sent by the Registry to the respondent but unfortunately there was a misstatement of the date to which the proceedings had been adjourned. It was stated to be 16 December, rather than 15 December as the Registrar had ordered.

32 On 14 December 2005, Ms Mahony, another solicitor for the applicant, had a telephone conversation with Mr Wayne Paddison. Mr Paddison is a principal with the respondent. Ms Mahony informed Mr Paddison that she was a solicitor with the applicant. Ms Mahony asked Mr Paddison whether he had a solicitor or person who is representing the respondent in the matter. Ms Mahony informed Mr Paddison that she had sent a letter to the registered office of the respondent about the current court proceedings and enquired whether someone was going to appear in the Court.

33 Mr Paddison informed Ms Mahony that she should speak to a Mr Dane Linde, a solicitor at Brooks & Co, and that he would be looking after the matter. Brooks & Co is the firm of solicitors who had earlier filed a notice of appearance for the respondent and had appeared in the matter. Ms Mahony said to Mr Paddison that the applicant had received a notice from Brooks & Co that they were no longer acting for the respondent. Nevertheless, Mr Paddison said that that firm was the firm that would be looking after the matter and that Ms Mahony should give Mr Linde at that firm a call.

34 Ms Mahony subsequently did call that firm of solicitors. However, she was not able to speak to Mr Linde at that time.

35 On 15 December 2005, the proceedings came before me as duty judge. Mr Kirk appeared for the applicant. There was no appearance for the respondent. The proceedings were adjourned to 16 December 2005 as a result of the misstatement in the letter sent by the registry advising that the return date was 16 December 2005.

36 Later that day, Ms Mahony received a telephone call from Mr Linde from Brooks & Co. Ms Mahony informed Mr Linde that she had spoken to Mr Paddison and that he had told her that Brooks & Co were acting for the respondent again. Mr Linde said that the circumstances of Brooks & Co acting for the respondent were “complicated” but requested nevertheless that a copy of the applicant’s motion be faxed to him so that he could look at it and advise Mr Wayne Paddison about it. Ms Mahony promised to do so. Subsequently, Ms Mahony sent the documents to Mr Linde as requested.

37 On 16 December 2005, when the matter came before me there was still no appearance for the respondent. Mr Kirk appeared for the applicant. The applicant, although initially pursuing its notice of motion, subsequently sought that certain of the issues, namely, the issues concerning prayers for relief 1 to 5 in the amended application class 4, be heard as separate issues. I made the following orders:

Land and Environment Court Rules

Supreme Court Rules

2. The Applicant is granted liberty to approach the Registry forthwith to have those questions separately decided at a hearing in the first week of February 2006.

3. The Applicant is to advise the Respondent of the orders made today by the Court by 23 December 2005.

4. The Applicant’s Notice of Motion dated 29 November 2005 is stood over to the first day of hearing of the separate questions.

5. The Applicant is to advise the Respondent of the affidavit evidence upon which it will seek to rely at the hearing, and of any documents upon which it will seek to rely by 23 December 2005.

6. The parties are given liberty to restore the matter to the Court on 48 hours notice to the other Party.

7. The question of costs in relation to the Notice of Motion dated 29 November 2005 is reserved.

38 Pursuant to order 2, the Registrar fixed 1 February 2006 as the date for hearing of the separate questions.

39 The orders were sent to the parties by the Registry.

40 On 19 December 2005, pursuant to order 5 of the Court orders of 16 December 2005, the applicant wrote to the respondent and to Brooks & Co advising of the orders made by the Court on 16 December 2005 and enclosing various documents.

41 On 9 January 2006, the applicant sought further orders in the nature of a Mareva injunction. Mr Gye of counsel appeared for the applicant. There was no appearance for the respondent. Pain J made the following orders:

1. The Respondent, by itself, its servants or agents, together with any business enterprise, company or companies controlled by the Respondent, be restrained until further order from disposing of, diminishing the value of, encumbering or otherwise dealing in any way with its assets up to $232,350.80 including any money, property or any other item of value irrespective of whether those assets are:

(a) in the Respondent’s own name or not;

(b) solely or jointly owned by the Respondent; or

(c) located within or outside the jurisdiction.

2. The Respondent, by itself, its servants or agents, together with any business, enterprise, company or companies controlled by the Respondent, be restrained from transferring any assets located within the jurisdiction outside of the jurisdiction, except with leave of this Court.

3. Order 1 will cease to have effect if the Respondent:

(a) provides a bank guarantee in the sum of $232,350.80; or

42 On 13 January 2006, the application for a Mareva injunction again came before Pain J. Mr Gye appeared for the applicant. This time there was an appearance for the respondent, being Mr A Combe of counsel. Pain J ordered:

“1. The proceedings by adjourned to Monday 30 January 2006 before Justice Pain.

2. The orders of the Court entered on 9 January 2006 continue to 30 January 2006.

3. The Applicant is to file and serve any Amended Notice of Motion seeking leave to join Mr Wayne Paddison by Thursday 19 January 2006.

4. The Applicant is to file and serve and further affidavits it seeks to rely on by Thursday 19 January 2006.

5. The Respondent is to file and serve any affidavits it seeks to rely on by Friday 20 January 2006.

6. Costs reserved.

7. The Applicant is to file and serve any affidavits in reply by Wednesday 25 January 2006”.

43 On 27 January 2006, the matter came before Acting Registrar Lennan who ordered that the application for a Mareva injunction be stood over for hearing on 30 January 2006.

44 On 30 January 2006, Brooks & Co sent a letter to the applicant advising that they no longer act for the respondent.

45 On 30 January 2006, the matter came before Pain J. Mr Gye appeared for the applicant. There was no appearance for the respondent. The Court made orders in the nature of a Mareva injunction in similar terms to the orders made by Pain J on 9 January 2006, the only difference being that Mr Wayne Paddison was added as a second respondent to join Leaway Pty Limited.

46 On 1 February 2006, the hearing of the separate questions in relation to prayers for relief 1 to 5 of the amended application class 4 commenced before me. Mr Kirk appeared for the applicant. There was no appearance for the respondent. The matter was called outside the Court but still there was no appearance.

47 Having regard to the detailed history that I have set out above, the respondent has had adequate notice that the applicant would be moving the Court for judgment on, and for the hearing of the separate questions in relation to prayers for relief 1 to 5 in the amended class 4 application. The respondent has chosen not to appear. It is nevertheless appropriate that the matter proceed in the absence of the respondent.

Liability to pay contribution and interest

48 Prayers for relief 1 to 3 in the amended application class 4 seek a declaration and orders that the respondent pay to the applicant the amount of monetary contribution required to be paid by s 88 of the Act and calculated in accordance with the Regulation for the periods of the last quarter of 2002 and the first quarter of 2003 and interest on that amount of contribution.

Provisions of the Act and the Regulation on contributions and interest

49 Section 88 provides, so far as is relevant:

“(1) This section applies to waste facilities that are required to be licensed under this Chapter, other than a facility that is used solely for the purposes of re-using, recycling or reprocessing waste as determined by the EPA.

(2) The occupier of any such waste facility is required to pay to the EPA in respect of all waste received at the facility such contribution as is prescribed by the regulations.

(3) The contribution payable by the occupier must be paid at such intervals, and in such manner, as the EPA may direct by notice in writing given to the occupier.

(5) The regulations may:

(a) provide for contributions to be calculated on such basis, and in accordance with such factors, as may be specified in the regulations.

…

(6) Any contribution payable under the section becomes, if it is not paid in accordance with this section and the regulations, a debt due to the EPA that is recoverable in any court of competent jurisdiction.

(7) Interest is payable on any unpaid contribution under the section at such rate and calculated in such manner as may be prescribed by the regulations. Any such interest may be recovered in the same way as the contribution may be recovered”.

50 The regulations referred to in s 88 are the Protection of the Environment Operations (Waste) Regulation 1996. Of relevance are regulations 18(1)(b) and 18(4)(a) which specify the contribution rate and reg 19 which specifies the interest rates on unpaid contributions. These regulations provide as follows:

“18(1) For the purposes of section 88(2) of the Act, the following contributions are prescribed as the contributions required to be paid by the occupiers of scheduled waste facilities:

(i) that is received in that year at a scheduled waste facility located in the extended regulated area, and

(4) The ERA amount is as follows:

19(1) If a contribution under section 88 of the Act is not paid by the date as specified by the EPA, 10% of the due amount is payable as interest.

(2) An additional 20% of the original due amount also accrues at the end of each period of 30 days following the due date for payment for such time as the contribution remains unpaid”.

51 A failure to pay the contribution and interest required by s 88 and the Regulation is a breach of the Act and Regulation. A breach of the Act and Regulation may be remedied or restrained by proceedings brought, including by the applicant or any other person, pursuant to s 252(1) of the Act. Section 252 provides, so far as is relevant:

“(1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations.

(8) In this section:

breach

52 Proceedings brought pursuant to s 252 are assigned to class 4 of the Court’s jurisdiction: Section 20(ci) of the Land and Environment Court Act 1979 (“the LEC Act”).

53 In addition, the Court has jurisdiction and power pursuant to s 20(2)(a) of the LEC Act to “enforce any right, obligation or duty conferred or imposed by a planning or environmental law.” The Act is defined in s 20(3) to be such a law. The applicant has a right to payment of the contribution and interest conferred by the Act and the respondent has a correlative duty.

Elements to be established under section 88 of the Act

54 For liability to arise under s 88 of the Act, the applicant must establish pursuant to that section that:

(a) the premises are a waste facility required to be licensed under Chapter 3 of the Act: s 88(1);

(b) the facility is not used solely for the purpose of re-using, re-cycling or re-processing waste as determined by the EPA: s 88(1);

(c) the respondent is the occupier of the waste facility: s 88(2);

(d) the occupier is not exempt under reg 20 of the Regulation on the basis that the premises are used, relevantly, “to dispose of only coal washery, rejects, slags or virgin excavated material (or any combination of those types of waste)”; and

Waste Facility

55 The premises of the respondent are required to be licensed by reason of the following:

(a) Under s 48(1) of the Act, scheduled activities under Schedule 1 (and see also s 5 of the Act) cannot be carried on without a licence.

(b) Under Part 1 of Schedule 1, “waste facilities”, as defined, are listed as scheduled activities – premises based.

(c) Under para (f) of the definition of waste facilities in Schedule 1, landfill sites within the “extended regulation area” are covered, except those subject to certain exceptions, none of which are applicable here. The premises did not receive coal washery rejects or slags at all and certainly not at a rate of more than 20,000 tonnes per year (exception (i)). The premises are not residential premises or on land used principally for farming operations (exception (ii)). Finally, the premises, even if they did receive more than 20,000 tonnes of inert waste over any period of time, did not receive such waste in a manner that was incidental or ancillary to the land being used for a purpose other than as a landfill or application site (exception (iii)).

56 The evidence establishes that the waste is being received at the premises. In its defence, the respondent states that coal tailings are being excavated and replaced with “inert grade landfill”: para 2 of the defence.

57 The export of coal tailings is irrelevant to the premises being used as waste facilities.

58 The respondent has accepted that it needed a licence. In order for it to need a licence the premises would need to be a waste facility. The respondent sought a licence for a “waste facility subs (f): land filling in designated areas”.

59 As a matter of fact, the premises are licensed. The licence was issued on 30 August, 2002.

60 The respondent claims in its defence that it has engaged in remediation of the premises: paras 2 and 7. Even if this be correct, the fact that it has engaged in remediation is not relevant to the classification of the premises as waste facilities or to its legal liability to pay a contribution under the Act and the Regulation.

Not used solely for purpose of reusing, recycling and reprocessing waste

61 The respondent has not admitted that the facility has not been used solely for re-using, re-cycling and/or re-processing waste: para 4 of the defence not admitting para 7 of the points of claim. However, there is no evidence that the waste received at the premises (as opposed to any coal tailing exported from it) is re-used, re-cycled or re-processed. There certainly is no evidence that the premises are used “solely” for the purpose of re-using, re-cycling or re-processing waste.

62 In any event, s 88(1) of the Act refers to the site’s facility being “as determined by the EPA”. The applicant has not determined that the site’s facility is used solely for the purposes of re-using, recycling or reprocessing waste.

Occupier of waste facility

63 The respondent is the occupier of the premises. So much is indicated on the respondent’s application for its licence.

Not exempt under Regulation 20

64 The respondent in a letter dated 25 May, 2005 to the applicant sought to raise reg 20(b). Regulation 20(b) provides:

“The occupier of any of the following types of scheduled waste facility is exempt from the requirement to pay a contribution to the EPA under s 88 of the Act:

...

(b) premises used to dispose of only coal washery rejects, slags or virgin excavated natural material (or any combination of those types of waste).”

65 The respondent said that reg 20(b) applied because “the operation is used to dispose of the coal materials”.

66 However, it is plain on the face of reg 20(b) that the exemption is only available if coal washery rejects, slags or virgin excavated natural material, or any combination of those types of waste, are disposed of at the premises. This is not what the respondent does. To the contrary, what the respondent says it does is to export coal washery tailings from the site to some other premises. This does not fall within the exemption of reg 20(b).

67 It is also clear on the evidence that the material that has been received at the premises, as detailed in the two quarterly reports that the respondent did file with the EPA, comprised construction and demolition waste. Accordingly, it could not fall within the exemption in reg 20(b) which requires that the waste that is disposed of at the premises be “only” coal washery rejects, slags or virgin excavated natural material, or any combination of these types of waste.

EPA directed by notice the intervals and manner of payment

68 The amount of the contribution required to be paid is fixed by s 88(2) and reg 18 of the Regulation. The intervals at which the contribution so fixed is to be paid and the manner of payment is fixed by s 88(3) of the Act and any notice in writing given by the applicant to the occupier.

69 Notice was given under s 88(3) to the respondent by the applicant on 17 December 2003. That notice stated, amongst other things:

“The Environment Protection Authority (EPA) directs Leaway Pty Ltd to pay to the EPA the contribution payable at the following intervals and in the following manner.

Intervals

reporting period

60 days

Manner

The contribution for each reporting period must accompany the information submitted to the EPA under cl 23A of the Regulation in respect of the same period. Full details of the information currently required by the EPA under cl 23A of the Regulation are contained within the Waste Contributions Monthly Report (WCMR), a copy of which is enclosed.”

70 It is also worth noting that the respondent has acknowledged its liability to pay the contribution, first in a letter to the Minister, the Honourable Mr R J Debus, of December 2002, secondly at a meeting with the Director General of the Department of Environment and Conservation on 8 January, 2003 at which meeting the Director General indicated to the principal of the respondent that “they must pay the levy” and thirdly, in the respondent’s letter to the EPA of 2 September, 2005. However, in respect of the latter letter there was a purported retraction of the admission.

Entitlement to declaration established

71 Having regard to the matters above, the Court is satisfied that the applicant has established its entitlement to a declaration in the form sought in prayer 1 of the amended application class 4.

Contribution Amount

72 Using the prescribed rates and manner of calculation of contribution for the amount of waste received by the respondent at the premises in the last quarter of 2002 and the first quarter of 2003, the amount of the contribution due is $47,418.53. This is 4,939.43 tonnes at a rate of $9.60 per tonne.

73 The applicant demanded the respondent pay this amount. The respondent has admitted that the applicant has demanded the amount: para 15 of the defence.

74 The amount has not been paid, as the respondent has admitted in its defence: para 16 of the defence.

75 Accordingly, the Court is satisfied that the applicant is entitled to an order as sought in prayer 2 of the amended application class 4 that the respondent pay to the applicant the sum of $47,418.53, being the amount owed by the respondent to the applicant pursuant to s 88 of the Act with respect to the last quarter of 2002 and the first quarter of 2003.

Interest

76 Applying the prescribed rates and manner of calculation of interest in reg 19 to the principal sum of $47,418.53 for the period from 28 May 2004 (the date on which the applicant sent an invoice to the respondent) to 31 January 2006, the total interest on the principal sum is $194,415.97.

77 Accordingly, the Court is satisfied that the Court should make an order as sought in prayer 3 of the amended application class 4 that the respondent pay the applicant interest on the amount of the unpaid contribution in the sum of $194,415.97.

Breaches in relation to provision of information and documents

78 Prayers 4 and 5 of the amended application class 4 seek orders that the respondent provide various information and documents to the applicant. The requirement to provide such information and documents arises partly from the statutory licensing scheme and partly from the need for the respondent to provide discovery to allow the applicant to prepare and put its case.

79 Condition R7 of the respondent’s licence provides:

“R7.1 The licensee must provide the EPA with information on the quantity of waste received at the facility and the quantity of waste transported from the facility each quarter. The information in respect of a particular quarter is to be provided on the approved Form WISQTR.1 and must be received by the EPA within sixty days of the end of that quarter.

For the purposes of this condition each of the following periods is a quarter:

(Quarter 1) 1 January - 31 March.

(Quarter 2) 1 April - 30 June.

(Quarter 3) 1 July - 30 September.

(Quarter 4) 1 October - 31 December.”

80 Form WISQTR.1 provides that the respondent must submit monthly reports if a s 88 contribution is required to be paid and waste is generated and received in the extended regulatory area. For the reasons I have given above, a s 88 contribution is payable by the respondent and the waste is generated and received in the extended regulated area. Accordingly, the respondent is required to submit monthly reports.

81 Regulation 23 of the Regulation provides:

“(1) The occupier of a scheduled waste facility who is required to pay contributions under section 88 of the Act must accurately record the following details in respect of each vehicle (other than a motor car or a car trailer) that transports waste to or from the waste facility:

(2) The occupier of a scheduled waste facility who is required to pay contributions under section 88 of the Act must accurately record, on a daily basis, the following details in respect of the motor cars or car trailers that transport waste to the waste facility:

82 Regulation 23A of the Regulation provides:

“The occupier of a scheduled waste facility who is required to pay contributions under section 88 of the Act must provide the EPA with the following information in such manner and at such times as is required by the EPA:

(a) the quantity of waste received at the waste facility over any specified period,

(b) the types of waste received at the waste facility over that period,

(c) such other information as may be specified by the EPA”.

83 Regulation 24(1) of the Regulation provides:

“(1) Subject to subclause (2), the occupier of a scheduled landfill site who is required to pay contributions under section 88 of the Act must cause a volumetric survey of the landfill site to be carried out by a registered or qualified surveyor:

(a) during June in each year and provide the results to the EPA in the approved form and manner by no later than 31 July in that year, and
(b) during December in each year and provide the results to the EPA in the approved form and manner by no later than the following 31 January”.

84 The applicant has sought the information and documents required by the licence, the form and the Regulation but the respondent has not provided them.

85 The applicant now seeks, in prayers for relief 4 and 5 of the amended application class 4, orders of the Court that the respondent provide the information and documents to the applicant.

86 The failure of the respondent to provide the information and documents constitutes a breach of the Act and the Regulation, capable of being remedied by an order of the Court under s 252(6) of the Act.

87 Moreover, the Court can make orders requiring the respondent to provide discovery. The material sought by the applicant is necessary for the applicant to be able to calculate or to confirm the calculation of the contribution payable in relation to the period after 31 March 2003, for which no reports have been lodged by the respondent. Enabling such calculation and confirmation is clearly one of the main purposes of the various duties under the licence, Act and Regulation.

88 Provision of this information can be seen as a form of discovery, given the applicant’s need for the information for the purposes of this case. Indeed, discovery in much these terms was sought by the applicant but never provided by the respondent.

89 Turning to deal particularly with each of the categories of orders sought in prayer for relief 4, I make the following findings.

90 Prayer for relief 4(a) is based on licence condition R7. The respondent is obliged to comply with all conditions of licence. A failure to comply with a condition of licence is a breach of the Act. An order under s 252(6) of the Act can remedy that breach.

91 In relation to para (4)(b), the respondent, as occupier of a scheduled waste facility, is required under reg 23A to provide the applicant with the information stated in that regulation in such manner and at such times as specified by the applicant. The specification of the manner and times was made by the applicant in the notice sent to the respondent on 17 December 2003 to which I have referred above. That notice required the respondent to provide monthly reports on the WCMR form. The respondent has failed to provide the reports. That failure constitutes a breach of the Regulation and the Act. An order under s 252(6) of the Act is appropriate to remedy that breach.

92 In relation to para (4)(c), the respondent, as occupier of a scheduled landfill site, is required pursuant to reg 24 to cause a volumetric survey to be undertaken in June and December of each year.

93 The applicant specifically reminded the respondent, in December 2003 and June 2004, of the obligation to undertake and provide such surveys. The respondent admitted in its defence that it has not supplied a copy of any such survey: para 11 of the defence. The failure of the respondent to undertake and provide volumetric surveys is a breach of the Regulation and the Act, again capable of being remedied by an order under s 252(6) of the Act.

94 In relation to para (4)(d), pursuant to condition 57 of the development consent granted to the respondent, the respondent was required to obtain and retain weighbridge tickets for waste being received at the premises. Although that development consent is not an approval under the Act, rather it is one under the Environment Planning and Assessment Act 1979, the weighbridge tickets would be of utility to the applicant in calculating how much waste has been received at the premises. The information is therefore information that is appropriate to be the subject of an order for discovery by the respondent. The respondent has failed to provide the information to the applicant. It is appropriate that the Court order that the respondent, by way of discovery, provide the weighbridge tickets for waste received at the premises to the applicant.

95 In relation to para (4)(e), the respondent, as occupier of a scheduled waste facility, is required pursuant to reg 23 to record certain details in respect of each vehicle that transports waste to or from the facility including the type and quantity of waste carried. This information would be of utility to the applicant. The respondent has failed to provide the information to the applicant. The failure of the respondent to provide the information is a breach of the Regulation and the Act and is capable of being remedied by an order under s 252(6) of the Act.

96 The above discussion deals with the information and documents that are currently in existence and held by the respondent but not produced to the applicant. However, the applicant also seeks orders that the respondent prepare (bring into existence) information and documents that it was required to prepare. The failure of the respondent to prepare and provide to the applicant such information and documents constitutes a breach of the Regulation and the Act and the Court may remedy that breach by ordering the respondent to prepare the documents and, upon being prepared, provide them to the applicant.

97 The two classes of documents that are of relevance here are the waste contributions monthly reports and the volumetric survey.

98 The respondent was required by Condition R7 of the licence, Form WISQTR.1 and the applicant’s notice of 17 December 2003 to prepare waste contributions monthly reports. The respondent should be required to prepare the waste contributions monthly reports for each of the months for which waste has been received at the premises and in respect of which a monthly report has not already been prepared.

99 Furthermore, the respondent was required by reg 24(1)of the Regulation to prepare during December 2005 a volumetric survey and to provide the results of such survey to the applicant in the approved form and manner by no later than 31 January of this year. That was yesterday. The respondent has not provided to the applicant a volumetric survey carried out during December of 2005. There is therefore a breach of the Regulation and of the Act. An order under s 252(6) to carry out now a volumetric survey, although a month late, nevertheless is an order that remedies the breach of the Regulation by the respondent of not carrying out the volumetric survey during December 2005 and providing the results of that survey to the applicant by 31 January 2006.

100 Accordingly, it is appropriate that the Court also make orders that the respondent prepares and provides to the applicant waste contributions monthly reports for any period for which reports have not been provided, namely, a report for the period 30 August 2002 up to 30 June 2003 (a period of ten months) and individual monthly waste contribution monthly reports for each month thereafter up until 31 December 2005. Furthermore, it is appropriate that the Court order that the respondent cause a volumetric survey to be undertaken of the land filling areas of the premises and provide the results of the survey to the applicant.

Orders

101 For these reasons, the Court makes the following declarations and orders:

Protection of the Environment Operations Act

Protection of the Environment Operations (Waste) Regulation

2. An order that the Respondent pay to the Applicant forthwith the sum of $47,418.53, being the amount owed by the respondent to the applicant pursuant to s 88 of the Act with respect to the last quarter of 2002 and the first quarter of 2003.

3. An order that the respondent pay to the applicant forthwith interest on the sum payable pursuant to paragraph (2) from 28 May 2004 in the sum of $194,415.97.

4. An order that by 1 March 2006 the Respondent provide to the applicant copies of the following documents and/or records, with weights expressed in tonnes, in respect of the premises:

(a) Copies of any and all draft or completed EPA waste data forms (the form known as WISQTR.1 or the Quarterly Report for Scheduled Waste Activities), as referred to in Condition R7 of the licence, insofar as these exist.

(b) Copies of any and all draft or completed Waste Contributions Monthly Reports (WCMRs) as referred to in the letter and notice sent to the respondent by the applicant and dated 17 December 2003, insofar as these exist.

(c) A copy of the results of any volumetric survey undertaken of the premises as required by cl 24 of the Regulation.

(d) Weighbridge records and/or data from the Wickham weighbridge facility and all other weighbridge facilities that have recorded the weight of waste for disposal at the premises from 1 October 2002 to the date of this order.

(e) Records of vehicle movements from 1 October 2002 to the date of this order recorded and kept in accordance with the requirements of cl 23 of the Regulation:

(i) the registration number of each vehicle;

(ii) the time and date of entry to the waste facility;

(iii) the time and date of exit from the waste facility;

(iv) the type of waste carried by the vehicle (provided in terms of the waste classification provisions and the special interpretative provisions under Schedule 1 of the Act);

(v) the quantity (in tonnes) of each type of waste carried by the vehicle;

5. An order that by 1 March 2006 the respondent complete and provide to the applicant the following Waste Contribution Monthly Reports for any period for which the reports have not been provided pursuant to order (4)(b) above:

(i) a single report for the period 30 August 2002 to 30 June 2003 (ten months);

6. An order that by 1 March 2006 the respondent cause a volumetric survey to be undertaken of the land filling area at the premises and provide the results of the survey to the applicant.

7. An order that the respondent pay the applicant’s costs for the proceedings to date (including the costs reserved on 16 December 2005).

8. Proceedings are otherwise be adjourned before the class 4 List Judge on 23 March 2006.

I certify that this and the 30 preceding pages are a true copy of the reasons for the judgment of The Honourable Justice B. J. Preston.

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Citations

Environment Protection Authority v Leaway Pty Limited [2006] NSWLEC 44

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CITATION:	Environment Protection Authority v Leaway Pty Limited [2006] NSWLEC 44
PARTIES:	APPLICANT Environment Protection Authority RESPONDENT Leaway Pty Limited
FILE NUMBER(S):	40719 of 2005
CORAM:	Preston CJ
KEY ISSUES:	Civil Enforcement :- licensed waste facility - obligation to pay contributions for waste received and disposed of at facility - breach of - order to remedy breach by payment of contributions and interest on unpaid contributions. Civil Enforcement:- licensed waste facility - licence condition and regulatory requirements to prepare and provide information and reports to the Environment Protection Authority - breach of - order to remedy breach by preparing and providing required information and reports. Waste Disposal:- licensed waste facility - obligation to pay contributions for waste received and disposed of at facility - licence condition and regulatory requirements to prepare and provide information and reports to the Environment Protection Authority - breaches of - orders to remedy and restrain breaches.
LEGISLATION CITED:	Protection of the Environment Operations Act 1997, s 88, s 252(6) Protection of the Environment Operations (Waste) Regulation 1996, reg 18(1)(b), reg 18(4)(a), reg 19, reg 20(b), reg 23, reg 23A, reg 24(1)
DATES OF HEARING:	01/02/2006
EX TEMPORE JUDGMENT DATE:	02/01/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr J Kirk (barrister) SOLICITOR Environment Protection Authority RESPONDENT No appearance