Eveston v Environment Protection Authority

[2019] NSWLEC 1050

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Eveston v Environment Protection Authority [2019] NSWLEC 1050
Hearing dates:	Conciliation conference on 23 & 30 November 2018; 11 December 2018
Date of orders:	12 February 2019
Decision date:	12 February 2019
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	See orders at [15] below
Catchwords:	ENVIRONMENTAL PROTECTION LICENCE: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Protection of the Environment Administration Act 1991 Protection of the Environment Operations Act 1997
Category:	Principal judgment
Parties:	Christopher James Eveston (Applicant) Environment Protection Authority (Respondent)
Representation:	Counsel: F Berglund (Respondent)   Solicitors: A Bradbury, Bradley Allen Love Lawyers (Applicant) NSW Environment Protection Authority (Respondent)
File Number(s):	2018/158727
Publication restriction:	No

Judgment

Background

1. Mr Christopher James Eveston (“the Licensee”) is the holder of Environment Protection Licence No. 20036 (“the Licence”) issued under the Protection of the Environment Operations Act 1997 (“the PEO Act”). The Licence authorises the carrying out of scheduled activities of waste storage and resource recovery at 2-12 Common Street, Goulburn (“the Premises”).

2. The Environment Protection Authority (“EPA”) is responsible for the administration and enforcement of the PEO Act and is the appropriate regulatory authority in relation to the Licence and the Premises under the PEO Act.

3. On 26 April 2018, the EPA revoked the Licence held by the Licensee under s 79 of the PEO Act subject to conditions imposed under s 81 of the PEO Act. The decision followed a determination by the EPA that there was no development consent for the Premises.

4. On 21 May 2018, the Licensee appealed the EPA's decision to revoke its Licence to the Court under s 287 in Part 9.2 of the PEO Act.

5. Section 17 of the Land and Environment Court Act 1979 ("LEC Act"), authorises me to hear and dispose of this appeal. On appeal, I have the same powers as the EPA including the power to issue a licence under the PEO Act subject to conditions: s 39 of the LEC Act.

6. The background facts to this appeal (which I have read), and the statutory framework are detailed in the statement of facts and contentions filed by the Licensee dated 18 October 2018 and the EPA's statement in reply.

7. Under Chapter 3 of the PEO Act, the EPA (now the Court) exercises licensing functions. In exercising these functions under Chapter 3, the Court is required to take into consideration such of the matters listed in s 45 as are relevant.

8. With respect to the Notice on appeal in this case, I have undertaken the requisite considerations under s 45, including the matters raised in subparagraphs (b), (c), (d) and (f).

9. One of the EPA’s licensing functions under Chapter 3 of the PEO Act is the revocation of licences in accordance with s 79 of the PEO Act. Relevantly, s 79 of the PEO Act provides:

(1) The appropriate regulatory authority may suspend or revoke a licence during its currency.

(2) A suspension or revocation of a licence is effected by notice in writing given to the holder of the licence.

(3) A suspension may be for a specified period, or until the fulfilment of specified conditions, or until further order of the appropriate regulatory authority.

(3A) A licence may be revoked during the currency of a suspension.

(4) The appropriate regulatory authority is not required to give the holder of a licence notice of the authority’s intention to suspend or revoke the licence (whether with or without conditions imposed under section 81) before giving a notice under subsection (2).

(5) The reasons for suspending or revoking a licence may include (but are not limited to) the following:

(a) the holder of the licence has obtained the licence improperly,

(b) a condition of the licence has been contravened,

(c) the scheduled development work to which the licence relates has not been commenced or completed and the appropriate regulatory authority is of the opinion that it is no longer appropriate that the work be carried out or completed,

(d) the activities covered by the licence are completed or no longer being carried on,

(e) the holder has failed to pay the annual licence fee by the due date for its payment,

(e1) the holder is liable to pay a contribution in respect of waste under section 88 and has failed to pay the contribution by the due date for its payment,

(f) in the opinion of the appropriate regulatory authority, the holder of the licence is no longer a fit and proper person (as referred to in section 83).

(6) No fees are refundable on the suspension or revocation of a licence.

10. In an effort to resolve the issues in dispute and the proceeding, the Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 23 and 30 November and 11 December 2018. I presided over the conciliation conference.

11. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the upholding of the appeal and the modification of the Notice of Revocation dated 26 April 2018 in accordance with Attachment 1 to Annexure "A" to the parties’ executed agreement forwarded to the Court and dated 20 December 2018.

12. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 79(3) of the PEO Act to modify the Notice of Revocation to allow certain works to be undertaken to Iawfully remove and dispose of specified quantities of waste from the Premises and reporting to the EPA before the Licence is operative. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings namely compliance with conditions of the relevant development consent for the Premises. The parties have also explained to me how and where the Licensee will remove and lawfully dispose of certain waste from the Premises, within the agreed timeframe, in order to allow for the continued operation of the facility in accordance with the proposed modified Notice and any relevant DA.

13. Based on my understanding of the evidence before me, I accept the agreed arrangement is within jurisdiction and thereby lawful and I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

14. As such, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

15. The Court orders:

1. The appeal is upheld.

2. The Notice of Revocation of Licence No. 20036 (bearing notice number 1557623) (Revocation) is amended as shown in Attachment 1.

3. The changes described in paragraph 3(d) of the conditions of revocation in Attachment 1, at sub-paragraphs (i) to (iii), will take effect on the provision of the following evidence by the Applicant to the Environment Protection Authority (EPA):

1. a volumetric survey carried out by a qualified surveyor confirming that the waste which remains on the Premises is less than the volume specified in the relevant sub-paragraph; and

2. receipts, invoices and weighbridge dockets from each waste facility where waste is disposed of showing the amount of waste received at the facility and dates of disposal.

4. The changes described in paragraph 3(d) of the conditions of revocation in Attachment 1, at sub-paragraph (iv), will take effect on:

1. the EPA conducting an inspection of the Premises confirming that there is no waste on the Premises; and

2. the provision by the Applicant to the EPA of receipts, invoices and weighbridge dockets from each waste facility where waste is disposed of showing the amount of waste received at the facility and dates of disposal.

5. The EPA agrees to do all things reasonable and necessary to give effect to the changes to Environment Protection Licence 20036 described in paragraph 3(d) of the conditions of revocation in Attachment 1 following the inspection or receipt of the evidence described at (3) and (4) above, including signing any documentation required to facilitate the reduction of the financial assurance and release of the excess amount to the Applicant.

6. The dates at paragraphs 5 and 6 of the conditions of revocation in Attachment 1 may be extended by the EPA in the following circumstances:

1. extenuating circumstances beyond the control of the Applicant which prevent removal of waste for more than 7 consecutive days where the Applicant provides written evidence of the extenuating circumstances to the EPA within 2 weeks of the Applicant becoming aware of the relevant circumstances; or

2. where the Applicant can demonstrate that he has used his best reasonable endeavours to dispose of the waste by the times specified in this Notice but has not, acting reasonably, been able to meet that timeframe.

7. Any extensions of time granted by the EPA under (6) are not to exceed 3 months calculated on a cumulative basis.

…………………………..

S Dixon

Senior Commissioner of the Court

Attachment 1 - Amended revocation notice

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Amendments

13 February 2019 - Correction to Cover Sheet