Land and Environment Court
New South Wales
Medium Neutral Citation: Environment Protection Authority v Ravensworth Operations Pty Ltd [2013] NSWLEC 92 Hearing dates: 14 November 2012, 14 December 2012 (written submissions) Decision date: 25 June 2013 Jurisdiction: Class 6 Before: Sheahan J Decision: (1) The prosecutor's appeal against dismissal of its summons is competent, but is dismissed.
(2) The prosecutor is to pay the respondent's costs of this appeal.
(3) The appeal books are returned.
Catchwords: APPEAL: "question of law alone"? - air pollution from dragline operations at a coal mine - prescription of standards and rates of emission to found a charge - methods of measurement - Magistrate adopted defendant's submissions and gave no other reasons for dismissing the charge in the summons Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Environmental Planning and Assessment Act 1979
Interpretation Act 1987
Protection of the Environment Operations Act 1997
Protection of the Environment Operations (Clean Air) Regulation 2002
Protection of the Environment Operations (Clean Air) Regulation 2010Cases Cited: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Director of Public Prosecutions v Linnett [2006] NSWSC 1086; 68 NSWLR 85
Federal Commissioner of Taxation v Cooper (1991) 99 ALR 703
Jemena Gas Networks (NSW) Ltd v Mine Subsistence Board [2011] HCA 19; 243 CLR 558
Krishna v Director of Public Prosecutions [2007] NSWCCA 318
Ku-ring-gai Council v Steve Nolan Productions Pty Ltd [2012] NSWLEC 258
Mines Subsidence Board v Wambo Coal Pty Ltd [2007] NSWCA 137
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v JS [2007] NSWCCA 272
R v Vaughan (No 2) (2009) 105 SASR 532
R v XHR [2012] NSWCCA 247
R v Young [1999] NSWCCA 166
Williams v The Queen (1986) 161 CLR 278; 28 A Crim R 1Category: Principal judgment Parties: Environment Protection Authority (Appellant/Prosecutor)
Ravensworth Operations Pty Ltd (Respondent/Defendant)Representation: Ms A Mitchelmore, barrister (Appellant/Prosecutor)
Mr T Howard, barrister (Respondent/Defendant)
Office of Environment and Heritage (Appellant/Prosecutor)
McCullough Robertson (Respondent/Defendant)
File Number(s): 60904 of 2012
Judgment
A: Introduction to this appeal judgment
This is an appeal in class 6 of this court's jurisdiction, against the dismissal - by the Local Court in Singleton, after hearing a preliminary question of law - of the prosecutor's summons.
The prosecutor had charged the defendant under the provisions of s 128 of the Protection of the Environment Operations Act 1997 ('POEO Act').
Apart from challenging the appeal on its merits, the defendant argues, as a threshold question, that an appeal is not available to the prosecutor.
The POEO Act section
Section 128 provides as follows:
Standards of air impurities not to be exceeded
(1) The occupier of any premises must not carry on any activity, or operate any plant, in or on the premises in such a manner as to cause or permit the emission at any point specified in or determined in accordance with the regulations of air impurities in excess of:
(a) the standard of concentration and the rate,…
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- Case
- [2013] NSWLEC 92
- Decision Date
CaseChat Overview and Summary
The central legal issue was the competence of the EPA's appeal and whether the lower court's dismissal of the summons was justified. The court examined whether the EPA had standing to appeal and whether the lower court correctly exercised its discretion in dismissing the summons. The court also considered whether Ravensworth had adequately demonstrated that the summons was an abuse of process.
The court found that while the EPA's appeal was procedurally competent, it was ultimately dismissed. The court reasoned that Ravensworth had sufficiently shown that the summons was an abuse of process, as the EPA had not provided adequate justification for the enforcement action. The court also determined that the lower court did not err in its discretion when dismissing the summons. Consequently, the appeal was dismissed, and the EPA was ordered to pay Ravensworth's costs for the appeal. The appeal books were to be returned to the lower court.
Orders
Orders of the court
(1) The prosecutor's appeal against dismissal of its summons is competent, but is dismissed.
(2) The prosecutor is to pay the respondent's costs of this appeal.
(3) The appeal books are returned.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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