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

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”).
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.
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.
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.
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.
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.
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.
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).
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…

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 [2019] NSWLEC 1050
Case: [2019] NSWLEC 1050
Decision Date: 12 February 2019

CaseChat Overview and Summary

In the case of Eveston against the Environment Protection Authority, the dispute centred on the Environmental Protection Authority's decision to refuse an application for an environmental authority to construct a dam. The matter was heard in the Federal Court of Australia. The plaintiff, Eveston, sought to build a dam to facilitate the extraction of sand from a riverbed, which was intended to be used for various construction purposes. The Environment Protection Authority declined the application on the grounds that the project could negatively impact the environment, particularly affecting local water resources and biodiversity.

The court was tasked with determining whether the Environment Protection Authority's decision was lawful, rational, and based on appropriate considerations. Additionally, it had to assess whether there were any errors in the application of statutory provisions and whether the decision was unreasonable under the relevant statutory framework. The plaintiff argued that the Authority had failed to properly consider the potential environmental benefits of the dam, while the Authority contended that the risks to the environment outweighed any potential benefits.

The court found that the decision of the Environment Protection Authority was not unreasonable. It was held that the Authority had correctly identified and considered the relevant environmental impacts and had appropriately applied the statutory criteria in reaching its decision. The court emphasised that the Authority's role in protecting the environment was paramount and that it had the discretion to weigh various factors, including potential environmental harm, when making its determination. The court found no basis to interfere with the Authority's decision, affirming that it was within the bounds of lawful and rational decision-making.

As a result of the court's findings, the plaintiff's application was dismissed. The orders included the dismissal of the appeal and the plaintiff bearing the costs of the proceedings. The court's decision underscored the importance of the Environment Protection Authority's role in environmental protection and the deference owed to its decisions in the absence of clear error or unreasonableness.

Orders

Orders of the court

See orders at [15] below

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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