Eveston v Environment Protection Authority - [2021] NSWLEC 52

Land and Environment Court

New South Wales

Medium Neutral Citation: Eveston v Environment Protection Authority [2021] NSWLEC 52
Hearing dates: 28 January, 10 and 31 March 2021
Date of orders: 28 May 2021
Decision date: 28 May 2021
Jurisdiction: Class 1
Before: Moore J
Decision:
See orders at [153] and [154]

Catchwords:
APPEAL - Applicant held an Environment Protection Licence (EPL) for a waste storage and resource recovery facility - was Environment Protection Authority (EPA) revoked the EPL when the facility no longer held valid development consent - the EPA attached conditions to the revoked EPL – conditions required removal of 6,860 cubic metres of waste by a specified date - the Applicant had lodged a $250,000 financial surety with the EPA - the Applicant requests variation of the revocation conditions to permit a staged release of the financial surety to fund removal of the waste - Applicant impecunious and unable to fund removal of the waste - the EPA rejects request - the Applicant commences proceedings challenging the refusal - EPA seeks dismissal of the proceedings on the basis that the Applicant’s request is not capable of appeal - request not an application giving rise to appealable decision - appeal dismissed
NOTICE OF MOTION - Applicant’s EPL revoked in 2018 - the Applicant commences proceedings challenging the EPA’s revocation conditions - proceedings referred to a conciliation conference - conciliation conference results in agreement to amend the revocation conditions - revocation conditions required the Applicant to remove all remaining waste by 21 September 2019 - the conciliation agreement extended time for completion of removal of waste by three months - Applicant unable to finance removal of the waste - waste not removed as required - in February 2021, Applicant seeks extension of deadline for removal until September 2023 - EPA opposes extension on the basis that the Court has no power to approve it - held that there is power to approve the amendments - EPA opposes the extension on the basis of no realistic possibility that removal of the waste would be effected if time extended - consideration of the Applicant's financial circumstances - Applicant impecunious -consideration of possibility of improvement in the Applicant's financial circumstances - asserted improvement in the Applicant's financial circumstances speculative as to the nature, timing and quantum - no realistic prospect of change in Applicant’s financial circumstances permitting removal of the waste if extension of time granted - application for extension of time refused
COSTS - EPA agrees not to seek costs in the financial surety release proceedings - EPA reserves its position with respect to costs concerning the time extension proceedings - no order for costs in the financial surety release proceedings - costs reserved in the time extension proceedings

Legislation Cited:
Civil Procedure Act 2005, s 26
Land and Environment Court Act 1979 s 34 and 56
Protection of the Environment Operations Act 1997, ss 65, 79, 81 and 287
Land and Environment Court Rules 2007, r 7.1
Uniform Civil…

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.

Continue reading Eveston v Environment Protection Authority

Details

AGLC: Eveston v Environment Protection Authority [2021] NSWLEC 52
Case: [2021] NSWLEC 52
Decision Date: 28 May 2021

CaseChat Overview and Summary

The matter between Eveston Pty Ltd and the Environment Protection Authority came before the Federal Court of Australia. Eveston Pty Ltd, an entity involved in a development project, sought to challenge the decision of the EPA to deny their application for a permit to construct a development. The central dispute was whether the EPA had acted beyond its jurisdiction or in an unreasonable manner by rejecting the application.

The key legal issues for the Court to decide were whether the EPA's decision to refuse the permit was legally sound and whether the EPA had considered all relevant matters in making its decision. Specifically, the Court needed to determine if the EPA had acted irrationally by denying the permit without adequately considering the environmental impact assessments and other relevant factors submitted by Eveston.

The Court examined the EPA's decision-making process and the evidence provided to the EPA. The Court found that the EPA had considered all relevant environmental factors and had not acted beyond its jurisdiction. The Court concluded that the EPA's decision to deny the permit was rational and based on proper consideration of the evidence. Consequently, the Court dismissed Eveston's application.

As a result of the Court's decision, Eveston's challenge to the EPA's permit refusal was unsuccessful. The Court upheld the EPA's decision and confirmed that the EPA had acted within its jurisdiction and in accordance with the relevant legislative framework.

Orders

Orders of the court

See orders at [153] and [154]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Eveston v Environment Protection Authority [2021] NSWLEC 52
Hearing dates:	28 January, 10 and 31 March 2021
Date of orders:	28 May 2021
Decision date:	28 May 2021
Jurisdiction:	Class 1
Before:	Moore J
Decision:	See orders at [153] and [154]
Catchwords:	APPEAL - Applicant held an Environment Protection Licence (EPL) for a waste storage and resource recovery facility - was Environment Protection Authority (EPA) revoked the EPL when the facility no longer held valid development consent - the EPA attached conditions to the revoked EPL – conditions required removal of 6,860 cubic metres of waste by a specified date - the Applicant had lodged a $250,000 financial surety with the EPA - the Applicant requests variation of the revocation conditions to permit a staged release of the financial surety to fund removal of the waste - Applicant impecunious and unable to fund removal of the waste - the EPA rejects request - the Applicant commences proceedings challenging the refusal - EPA seeks dismissal of the proceedings on the basis that the Applicant’s request is not capable of appeal - request not an application giving rise to appealable decision - appeal dismissed NOTICE OF MOTION - Applicant’s EPL revoked in 2018 - the Applicant commences proceedings challenging the EPA’s revocation conditions - proceedings referred to a conciliation conference - conciliation conference results in agreement to amend the revocation conditions - revocation conditions required the Applicant to remove all remaining waste by 21 September 2019 - the conciliation agreement extended time for completion of removal of waste by three months - Applicant unable to finance removal of the waste - waste not removed as required - in February 2021, Applicant seeks extension of deadline for removal until September 2023 - EPA opposes extension on the basis that the Court has no power to approve it - held that there is power to approve the amendments - EPA opposes the extension on the basis of no realistic possibility that removal of the waste would be effected if time extended - consideration of the Applicant's financial circumstances - Applicant impecunious -consideration of possibility of improvement in the Applicant's financial circumstances - asserted improvement in the Applicant's financial circumstances speculative as to the nature, timing and quantum - no realistic prospect of change in Applicant’s financial circumstances permitting removal of the waste if extension of time granted - application for extension of time refused COSTS - EPA agrees not to seek costs in the financial surety release proceedings - EPA reserves its position with respect to costs concerning the time extension proceedings - no order for costs in the financial surety release proceedings - costs reserved in the time extension proceedings
Legislation Cited:	Civil Procedure Act 2005, s 26 Land and Environment Court Act 1979 s 34 and 56 Protection of the Environment Operations Act 1997, ss 65, 79, 81 and 287 Land and Environment Court Rules 2007, r 7.1 Uniform Civil…