GT Property Company Pty Ltd v Maitland City Council

[2024] NSWLEC 1560

Land and Environment Court

New South Wales

Medium Neutral Citation:

GT Property Company Pty Ltd v Maitland City Council [2024] NSWLEC 1560

Hearing dates:

Conciliation conference on 6 September 2024

Date of orders:

16 September 2024

Decision date:

16 September 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The prevention notice dated 19 April 2024 (Notice) given by the respondent under s 96 of the Protection of the Environment Operations Act 1997 to the applicant (Council ref 2023/400451) is varied by amending the preventative action required by the Notice, in the manner shown in Annexure A to these orders.

(3) The terms of the Notice, as varied by Order (2) (including the maps incorporated into the Notice as varied), are as set out in Annexure B to these orders.

Catchwords:

APPEAL – prevention notice – conciliation conference – agreement reached – prevention notice varied

Legislation Cited:

Land and Environment Court Act 1979, ss 34, 39

Protection of the Environment Operations Act 1997, ss 96, 110, 289

Category:

Principal judgment

Parties:

GT Property Company Pty Ltd (Applicant)
Maitland City Council (Respondent)

Representation:

Counsel:
G Carolan (Applicant)
M Cottom (Solicitor) (Respondent)

Solicitors:
Bilbie Faraday Harrison (Applicant)
Local Government Legal (Respondent)

File Number(s):

2024/174093

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a Direction to take Preventative Action, which was issued to the applicant by the respondent, as the appropriate regulatory authority, pursuant to s 96 of the Protection of the Environment Operations Act 1997 (POEO Act) (Prevention Notice). The Prevention Notice was issued on 19 April 2024, and required the applicant to stop causing or allowing transportation of waste to his property at 154-170 Monkleys Road, Millers Forest. The Prevention Notice also required the applicant to remove the waste materials identified in the Notice. The applicant appeals against the Prevention Notice, pursuant to s 289 of the POEO Act. The final orders in this appeal, outlined in [11] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 6 September 2024. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement reflects that which is contained in the signed agreement provided on 27 August 2024. The agreement is for the Prevention Notice to be varied so that the restriction on receiving waste does not apply to any timber that will be used for rural fencing and the construction of animal shelters on the property. The variation also makes it clear that the requirement for removal of waste materials applies to a defined area within the property and that certain materials can be stored within a bunded area identified on the site for a fixed period.

4. The signed agreement is supported by an Agreed Jurisdictional Statement signed on 5 September 2024, which sets out the power of the Court to hear and determine an appeal against the Prevention Notice.

The power to make orders in accordance with the agreement

5. To make orders in accordance with the agreement, I must be satisfied that the decision to make orders to vary the Prevention Notice in the agreed terms is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act).

6. The modified Prevention Notice remains a notice to direct the occupier of premises to take action with respect to the transportation and disposal of “any waste or other substance” in accordance with the terms of s 96 of the POEO Act. The matters outlined at E to L of Annexure B are capable of giving rise to a reasonable suspicion that an activity has been carried out on the property in an environmentally unsatisfactory manner, in satisfaction of s 96(1) of the POEO Act. The statutory requirements for the issue of the Prevention Notice are therefore met.

7. In addition, pursuant to s 39(2) of the LEC Act, the Court has “all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal”. This extends to the power of the regulatory authority to revoke or vary the notice pursuant to s 110 of the POEO Act.

8. I am satisfied that the decision to make orders to vary the Prevention Notice in the terms agreed to by the parties is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act), for the reason that s 39(2) of the LEC Act gives the Court the power, on the hearing of the appeal, to exercise the functions and discretions of the Council to vary the Prevention Notice pursuant to s 110(2) of the POEO Act.

9. Having reached the state of satisfaction that the decision agreed upon is a decision that the Court could make in the exercise of its functions in each of the appeal proceedings, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

10. In making orders to give effect to the agreement between the parties, I was not required to make, and have not made, any findings of fact in relation to any dispute about what has occurred on the site, or any assessment of the merits of the issues that were originally in dispute between the parties.

11. The Court orders that:

1. The appeal is upheld.

2. The prevention notice dated 19 April 2024 (Notice) given by the respondent under s 96 of the Protection of the Environment Operations Act 1997 to the applicant (Council ref 2023/400451) is varied by amending the preventative action required by the Notice, in the manner shown in Annexure A to these orders.

3. The terms of the Notice, as varied by Order (2) (including the maps incorporated into the Notice as varied), are as set out in Annexure B to these orders.

J Gray

Commissioner of the Court

174093.24 Annexure A

174093.24 Annexure B

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Decision last updated: 16 September 2024