Land and Environment Court
New South Wales
Medium Neutral Citation: Eveston v Environment Protection Authority [2021] NSWLEC 54 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
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- AGLC
- Eveston v Environment Protection Authority [2021] NSWLEC 54
- Case
- [2021] NSWLEC 54
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the EPA's decision was legally sound and whether it had properly considered all relevant factors. The applicants argued that the EPA had failed to consider the cumulative impact of the facility on the environment and the health of nearby residents, and that it had not properly assessed the potential for greenhouse gas emissions and odour. The EPA, on the other hand, argued that it had considered all relevant factors and had made a decision that was in the best interests of the community.
The court found that the EPA had failed to properly consider the potential health impacts of the proposed development on nearby residents, and that it had not adequately assessed the potential for greenhouse gas emissions and odour. The court held that the EPA's decision was therefore legally flawed and should be set aside. The court also found that the EPA had not properly considered the cumulative impact of the facility on the environment, and that it had not adequately assessed the potential for odour and other environmental impacts.
The court set aside the EPA's decision and remitted the matter back to the EPA for reconsideration. The court also made several orders, including that the EPA must consider the potential health impacts of the proposed development on nearby residents, the potential for greenhouse gas emissions and odour, and the cumulative impact of the facility on the environment. The court further ordered that the EPA must properly assess these factors and make a decision that is in the best interests of the community.
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
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Ratio Decidendi
Legal Principle Established
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