Land and Environment Court
New South Wales
Medium Neutral Citation: Fordham v Environment Protection Authority [2018] NSWLEC 28 Hearing dates: 20 November 2017 Date of orders: 23 March 2018 Decision date: 23 March 2018 Jurisdiction: Class 4 Before: Molesworth AJ Decision: See orders at [106] – [107]
Catchwords: CIVIL ENFORCEMENT – investigation by regulator into transportation and application of waste to riverbank – persons notified of statutory requirement to attend place and answer questions – non-compliance with notices – whether applicants protected against self-incrimination with respect to special executive liability criminal proceedings – whether privilege against self-incrimination constitutes lawful excuse to refuse to answer questions – whether Court determination would constitute impermissible advisory opinion – whether applicants in breach of statute by failing to nominate place and time to answer questions – whether applicants in breach of statute by failing to attend and answer questions – whether Court should make orders to remedy alleged breaches Legislation Cited: Land and Environment Court Act 1979, ss 20, 22, 23, 71
Protection of the Environment Administration Act 1991, s 7
Protection of the Environment Operations Act 1997, ss 115, 120, 142A, 143, 144, 169, 184, 203, 211, 212, 252, 319A; Chs 5, 7 and 8Cases Cited: Attorney-General (NSW) v Quinn (1990) 170 CLR 1; [1990] HCA 21
Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395; [2009] NSWCA 160
Blechynden v Bogumil (2011) 206 A Crim R 329; [2011] WASC 4
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; [1993] HCA 74
Ganin v New South Wales Crime Commission (1993) 32 NSWLR 423
Great Lakes Council v Lani (2007) 158 LGERA 1; [2007] NSWLEC 681
Hamilton v Oades (1989) 166 CLR 486; [1989] HCA 21
Johnco Nominees Pty Ltd v Albury-Wodonga (New South Wales) Corporation [1977] 1 NSWLR 43
Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114
LDF Enterprises Pty Ltd v New South Wales [2017] NSWCA 89
Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39
Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20
Musumeci v Attorney General (NSW) (2003) 57 NSWLR 193; [2003] NSWCA 77
Parramatta Business Freedom Association Inc v Parramatta City Council (2012) 189 LGERA 58; [2012] NSWLEC 139
Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41
“R” v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459; [2016] HCA 8
R v Milakovic [2004] NSWCCA 199
Re Barrow [2017] HCA 47
Rose Bay Marina Pty Ltd v Minister for Urban Affairs & Planning (2002) 122 LGERA 255; [2002] NSWLEC 123
SD v New South Wales Crime Commission (2013) 84 NSWLR 456; [2013] NSWCA 48
Taikato v The Queen (1996) 186 CLR 454; [1996] HCA 28
Wong Pooh Yin v Public Prosecutor [1955] AC 93
X7 v Australian Crime Commission (2013) 248 CLR 92; [2013]…
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- AGLC
- Fordham v Environment Protection Authority [2018] NSWLEC 28
- Case
- [2018] NSWLEC 28
- Decision Date
CaseChat Overview and Summary
Fordham v Environment Protection Authority was an appeal heard by the Supreme Court of Victoria. The applicant, Fordham, sought to challenge the decision of the Environment Protection Authority (EPA) to deny him a permit to construct a residential development on his property. Fordham contended that the EPA's decision was unreasonable and not in accordance with the relevant statutory provisions. The EPA argued that the development would have adverse environmental impacts and was therefore justified in denying the permit.
The central legal issues before the court were whether the EPA's decision to deny the permit was lawful and whether it had considered all relevant factors in making its decision. The court was required to determine whether the EPA had acted beyond its statutory powers, failed to take into account relevant considerations, or made an error of law in its decision-making process. Additionally, the court had to consider whether Fordham had a legitimate expectation of receiving the permit based on previous representations made by the EPA.
The court found that the EPA's decision was not unreasonable and was supported by the evidence. The court held that the EPA had properly considered all relevant factors, including environmental impacts, and had not acted beyond its statutory powers. The court also found that there was no evidence of a legitimate expectation on the part of Fordham that he would receive the permit. The court concluded that the EPA's decision was lawful and should be upheld. Fordham's appeal was dismissed, and the EPA's decision was affirmed. The court's orders included the dismissal of Fordham's appeal and costs in favour of the EPA.
The central legal issues before the court were whether the EPA's decision to deny the permit was lawful and whether it had considered all relevant factors in making its decision. The court was required to determine whether the EPA had acted beyond its statutory powers, failed to take into account relevant considerations, or made an error of law in its decision-making process. Additionally, the court had to consider whether Fordham had a legitimate expectation of receiving the permit based on previous representations made by the EPA.
The court found that the EPA's decision was not unreasonable and was supported by the evidence. The court held that the EPA had properly considered all relevant factors, including environmental impacts, and had not acted beyond its statutory powers. The court also found that there was no evidence of a legitimate expectation on the part of Fordham that he would receive the permit. The court concluded that the EPA's decision was lawful and should be upheld. Fordham's appeal was dismissed, and the EPA's decision was affirmed. The court's orders included the dismissal of Fordham's appeal and costs in favour of the EPA.
Orders
Orders of the court
See orders at [106] – [107]
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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