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Gray v Macquarie Generation

Gray v Macquarie Generation

Case [2010] NSWLEC 34 22 March 2010

Limitation Periods

Admissibility of Evidence

Judicial Review

Environmental Harm

Negligence

Statutory Interpretation

Environmental Law

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Land and Environment Court

of New South Wales

CITATION: Gray and Anor v Macquarie Generation [2010] NSWLEC 34

PARTIES: APPLICANTS
Peter Robert Grey
Naomi Crystal Hodgson
RESPONDENT
Macquarie Generation

FILE NUMBER(S): 40500 of 2009

CORAM: Pain J

KEY ISSUES: PRACTICE AND PROCEDURE :- whether summons should be summarily dismissed because no cause of action - whether lawful authority to emit carbon dioxide under environment protection licence - summons dismissed in part

LEGISLATION CITED: Pollution Control Act (1970)(repealed)
Protection of the Environment Operations Act 1997 s43, s63, s66, s75, s115, s322

CASES CITED: A-G v Great Eastern Railway Co (1880) 5 App Cas 473
Agar v Hyde (2000) 201 CLR 552
Briginshaw v Briginshaw (1938) 60 CLR 336
Egan v Willis (1998) 195 CLR 424
Electricity Commission of New South Wales v Environment Protection Authority (1992) 28 NSWLR 494
Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502
Environment Protection Authority v Cleary Bros (Bombo) Pty Ltd (1996) 92 LGERA 101
Environment Protection Authority v Hardt (2006) 148 LGERA 61
Ex parte Johnson; re MacMillan (1946) 47 SR (NSW) 16
Fenton v Hampton (1858) 11 Moore 347
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Genkem Pty Ltd v Environmental Protection Authority (1994) 35 NSWLR 33
Gilmour v Director of Public Prosecutions (Cth) (1995) 43 NSWLR 243
Johns v ASC (1993) 178 CLR 408
Leerdam v Noori (2009) 255 ALR 553
Metro Transport Sydney Pty Ltd v City of Sydney Council [2009] NSWLEC 37
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Protean (Holdings) Ltd v Environment Protection Authority [1977] VR 51
Salter v Director of Public Prosecutions [2008] NSWSC 1325
Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108

TEXTS CITED: Bennion on Statutory Interpretation, 5th ed, Butterworths 2008
Thomson Reuters, Laws of Australia, vol 14 (current at 31 August 1997) 14 Environment and Natural Resources, ’14.6 Environmental Harm: Pollution Control and Hazardous Substances’ [7]: Laws of Australia, (On-line) Legal Online (accessed 25 March 2010)

DATES OF HEARING: 2 December 2009

DATE OF JUDGMENT:
22 March 2010

LEGAL REPRESENTATIVES: APPLICANTS
Mr I Lloyd QC
SOLICITOR
Environmental Defenders Office
RESPONDENT
Mr B Walker SC with Mr R Lancaster SC and Mr L Livingston
SOLICITOR
Clayton Utz

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

22 March 2010

40500 of 2009 Gray and Anor v Macquarie Generation
JUDGMENT

1 Her Honour: In these Class 4 proceedings the Applicants seek a declaration, that between 1 January 2002 and 26 July 2009, the Respondent wilfully or negligently disposed of waste by the emission of carbon dioxide (CO₂) into the atmosphere in a manner that harmed or was likely to harm the environment, in contravention of s 115(1) of the Protection of the Environment Operations Act 1997 (the POEO Act). An order is sought that the Respondent forthwith cease disposing of waste through the emission of CO₂ into the…

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 Gray v Macquarie Generation

Details

AGLC: Gray v Macquarie Generation [2010] NSWLEC 34
Case: [2010] NSWLEC 34
Decision Date: 22 March 2010

CaseChat Overview and Summary

The Applicants sought a declaration that the Respondent was disposing of waste by the emission of carbon dioxide into the atmosphere in a manner that harmed or was likely to harm the environment in contravention of s 115(1) of the Protection of the Environment Operations Act 1997. An order was sought that the Respondent cease disposing of waste through the emission of carbon dioxide into the atmosphere in contravention of s 115(1) of the Act. The Respondent filed a Notice of Motion seeking dismissal of the proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005. The court was required to determine whether the proceedings were frivolous or vexatious, no reasonable cause of action was disclosed, or the proceedings were an abuse of the process of the court. The court found that the Respondent had met the high threshold required in order to succeed on its Notice of Motion. The licence granted by the Environment Protection Authority authorised the carrying out of scheduled activities at the Bayswater Power Station. The Respondent argued that the licence authorised the emission of carbon dioxide. The court found that the licence was properly construed as authorising the emission of carbon dioxide. The licence was a statutory instrument and must be construed strictly, in accordance with the usual rules of statutory construction in light of the objects and purposes of the Act it is made under. The licence expressly authorised the carrying out of the scheduled activity of electricity generation. The licence provides authority to undertake the scheduled activity of electricity generation, on the conditions specified. The emission of carbon dioxide was a necessary part of the generation of electricity. The licence would have no sensible operation if the licence is construed as not allowing the emission of carbon dioxide. The Applicants argued that the Respondent did not have lawful authority to emit unlimited amounts of carbon dioxide from Bayswater Power Station under its licence. The court found that the Respondent had lawful authority to emit carbon dioxide under its licence. The court found that the Applicants’ arguments were not met by the Respondent’s submissions. The Applicants argued that carbon dioxide was waste under condition L.5 of the licence and its discharge was not authorised on this basis. The court found that the Applicants’ arguments were not met by the Respondent’s submissions. The court found that the Applicants’ arguments were novel and the principle of limitation of statutory authority referred to in Van Son had not been applied in relation to the Protection of the Environment Operations Act 1997. The court found that the Applicants’ arguments were arguable. The court made an order upholding in part the Respondent’s application for summary dismissal. The Applicants were required to recast their summons and Points of Claim. The court made an order that the proceedings be dismissed in part.

Orders