Holmes v Environment Protection Authority

Case •

[2021] NSWLEC 1384

•

02 July 2021

Land and Environment Court


New South Wales

Medium Neutral Citation: Holmes v Environment Protection Authority [2021] NSWLEC 1384
Hearing dates: Conciliation conference on 16 February 2021, 26 April 2021, and 21 June 2021
Date of orders: 2 July 2021
Decision date: 02 July 2021
Jurisdiction:Class 1
Before: Peatman AC
Decision:

The Court orders:

See orders at [7] below

Catchwords:

VARIATION OF ENVIRONMENT PROTECTION LICENCE – appeal on conditions – conciliation conference – agreement between the parties – orders

Legislation Cited:

Land and Environment Court Act 1979, ss 17(a), 34 and 39

Protection of the Environment Administration Act 1991, s 6

Protection of the Environment Operations Act 1997, ss 43(b), 45(a)-(c), 55(1), 58(1), 287(1)-(2) and 292(1)-(2)

Texts Cited:

EPA of NSW ‘Noise Policy for Industry’, October 2017

Category:Principal judgment
Parties: Reginald Kevin Holmes (First Applicant)
Beverley Patricia Holmes (Second Applicant)
Environment Protection Authority of NSW (Respondent)
Representation:

Counsel:
L Sims (Applicants)
R Withana (Respondent)

Solicitors:
McCartney Young Lawyers (Applicants)
Environment Protection Authority of NSW (Respondent)
File Number(s): 2020/299512
Publication restriction: No

Judgment

  1. COMMISSIONER: The Applicants hold Environment Protection Licence No. 3372 (EPL 3372) issued by the Environment Protection Authority of NSW (EPA) pursuant to s 55(1) of the Protection of the Environment Operations Act 1997 (POEO Act) over the premises being Lot 1 Deposited Plan 392047 known as Clovass Quarry, Clovass Road, Casino, NSW 2470.

  1. The Applicants operate a commercial quarry at the premises pursuant to Development Consent DA26/80 issued by the then Shire of Richmond River (now Richmond Valley Council) dated 25 February 1980.

  2. The Applicants jointly hold EPL 3372 for the premises of the Clovass Quarry which has an annual extraction limit of 500,000 tonnes.

  3. On 28 September 2020, the EPA issued a Notice of Variation of EPL 3372 (EPL Variation) to the Applicants under s 58(5) of the POEO Act, which had the effect of varying a number of conditions of the EPL.

  4. These proceedings were commenced on 19 October 2020, and are an appeal against the EPL Variation under s 287(1) of the POEO Act.

  5. The proceedings fall under Class 1 of the Court’s jurisdiction pursuant to s 17(a) of the Land and Environment Court Act 1979 (LEC Act).

  6. The statutory functions to be exercised in determining the proceedings are s 292(1)-(2) of the POEO Act and ss 34(3) and 39 of the LEC Act.

Legislation

Land and Environment Court Act 1979

The Court has jurisdiction (referred to in this Act as "Class 1" of its jurisdiction) to hear and dispose of the following--

17 (a) appeals under Part 9.2 of the Protection of the Environment Operations Act 1997

Protection of the Environment Administration Act 1991

6 OBJECTIVES OF THE AUTHORITY

(1) The objectives of the Authority are:

(a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, and

(b) to reduce the risks to human health and prevent the degradation of the environment, by means such as the following:

• promoting pollution prevention,

• adopting the principle of reducing to harmless levels the discharge into the air, water or land of substances likely to cause harm to the environment,

• minimising the creation of waste by the use of appropriate technology,

• regulating the transportation, collection, treatment, storage and disposal of waste,

• encouraging the reduction of the use of materials, encouraging the re-use and recycling of materials and encouraging material recovery,

• adopting minimum environmental standards prescribed by complementary Commonwealth and State legislation and advising the Government to prescribe more stringent standards where appropriate,

• setting mandatory targets for environmental improvement,

• promoting community involvement in decisions about environmental matters,

• ensuring the community has access to relevant information about hazardous substances arising from, or stored, used or sold by, any industry or public authority,

• conducting public education and awareness programs about environmental matters.

(2) For the purposes of subsection (1) (a), ecologically sustainable development requires the effective integration of social, economic and environmental considerations in decision-making processes. Ecologically sustainable development can be achieved through the implementation of the following principles and programs:

(a) the precautionary principle--namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

In the application of the precautionary principle, public and private decisions should be guided by:

(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and

(ii) an assessment of the risk-weighted consequences of various options,

(b) inter-generational equity--namely, that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations,

(c) conservation of biological diversity and ecological integrity--namely, that conservation of biological diversity and ecological integrity should be a fundamental consideration,

(d) improved valuation, pricing and incentive mechanisms--namely, that environmental factors should be included in the valuation of assets and services, such as:

(i) polluter pays--that is, those who generate pollution and waste should bear the cost of containment, avoidance or abatement,

(ii) the users of goods and services should pay prices based on the full life cycle of costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any waste,

(iii) environmental goals, having been established, should be pursued in the most cost effective way, by establishing incentive structures, including market mechanisms, that enable those best placed to maximise benefits or minimise costs to develop their own solutions and responses to environmental problems.

Protection of the Environment Operations Act 1997

43   Types of licences

Environment protection licences may be issued for the following purposes—

(a)  to authorise the carrying out of scheduled development work at any premises, as required under section 47,

(b)  to authorise the carrying out of scheduled activities at any premises, as required under section 48,

(c)  to authorise the carrying out of scheduled activities not related to premises, as required under section 49,

(d)  to control the carrying out of non-scheduled activities for the purpose of regulating water pollution resulting from any such activity, as referred to in section 122.

Note—

Scheduled activities for which a licence is required are set out in Schedule 1. Scheduled development work for which a licence is required is defined in section 47 (being generally work on premises, at which scheduled activities are not carried on, that is designed to enable scheduled activities to be carried on at the premises). This Act permits (but does not require) a licence to be issued for a non-scheduled activity—compliance with the conditions of the licence provides a defence to the offence of polluting waters under section 120.

  1. Matters to be taken into consideration in licensing functions

In exercising its functions under this Chapter, the appropriate regulatory authority is required to take into consideration such of the following matters as are of relevance—

(a)  any protection of the environment policies,

(b) the objectives of the EPA as referred to in section 6 of the

(c)  the pollution caused or likely to be caused by the carrying out of the activity or work concerned and the likely impact of that pollution on the environment,

(d)  the practical measures that could be taken—

(i)  to prevent, control, abate or mitigate that pollution, and

(ii)  to protect the environment from harm as a result of that pollution,

55   Grant or refusal of application

(1)  The appropriate regulatory authority may grant or refuse an application for the issue or transfer of a licence. An application is granted by the issue or transfer of the licence concerned.

(2)  The appropriate regulatory authority must not refuse such an application unless before doing so—

(a)  it has given notice to the applicant that it intends to do so, and

(b)  it has specified in that notice the reasons for its intention to do so, and

(c)  it has given the applicant a reasonable opportunity to make submissions in relation to the matter, and

(d)  it has taken into consideration any such submissions by the applicant.

Note—

Section 287 enables appeals to be made in connection with licence applications within a specified period after the person is given notice of the decision concerned. The section provides that the person may appeal if the licence application is not determined within 60 days, and for the purposes of the appeal the licence application is taken to have been refused.

287   Appeals regarding licence applications and licences

(1)  Any person—

(a)  who makes a licence application and who is aggrieved by any decision of the appropriate regulatory authority with respect to the application, or

(b)  who is or was the holder of a licence and who is aggrieved by any decision of the appropriate regulatory authority with respect to the licence,

may, within 21 days (or such other period as is prescribed instead by the regulations) after being given notice of the decision of that authority, appeal to the Land and Environment Court against the decision.

(1A)  The lodging of an appeal—

(a)  in the case of an appeal against a decision to suspend or revoke a licence (whether with or without conditions)—does not operate to stay the decision appealed against, and

(b)  in the case of an appeal against any other decision—does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay the decision appealed against.

(1B)  For the avoidance of doubt, the Land and Environment Court has no jurisdiction to make an order staying a decision referred to in subsection (1A) (a).

(2)  An appeal under this section extends to a decision to refuse the licence application, to impose conditions on the issue of a licence, to vary the conditions of a licence, to revoke or suspend a licence, to refuse to approve the surrender of a licence, to impose conditions on a revocation, suspension or surrender of a licence or to attach any new conditions to, or to vary any conditions of, a suspension, revocation or surrender of a licence.

Note—

The Dictionary defines licence application to mean an application for the issue, transfer or variation of a licence or for approval of the surrender of a licence.

…

Note—

Section 93B of the Environmental Planning and Assessment Act 1979 provides that, in the case of integrated development under that Act involving a licence application, the Court is under the same obligation as the appropriate regulatory authority with respect to the issue of the licence in accordance with the previous general terms of any approval by that authority.

292   Determination of appeals

(1)  A court to which an appeal is made under this Act may hear and determine the appeal.

(2)  The decision of the court on an appeal under this Act is final and binding on the appellant and the person or body whose decision or notice is the subject of the appeal.

  1. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 16 February 2021, 26 April 2021, and 21 June 2021. I presided over the conciliation conference.

  2. At 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 upholding the appeal and amending the EPL Variation as follows:

  1. Deleting the location description for dust monitoring gauge 2 in Condition P1.1 and inserting: “DDGO2 – located on Pearce’s property approximately 410m to the east of the Quarry as indicated on the email from ENV Solutions Pty Ltd on 2 April 2020”.

  2. Deleting condition L4 and inserting new condition L4 in Annexure A hereto.

  3. Deleting conditions L6.2 and L6.3.

  4. Inserting new special conditions E1 and E2 in Annexure A.

  5. Inserting new definitions being those with dot points under the heading “Additions to Definition of Terms of the Licence” in Annexure A.

  1. 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 292(1)-(2) of the POEO Act, and ss 34(3) and 39 of the LEC Act, to amend the EPL Variation in accordance with the agreement between the parties. 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 to be as set out below and they explained how the jurisdictional prerequisites have been satisfied:

  1. Section 45 of the POEO Act provides that the appropriate regulatory authority is required to take into consideration matters set out in that section that are relevant to the licensing functions it is exercising under Chapter 3 of the POEO Act (which contains s 43(b), relating to the power to issue an environment protection licence authorising the carrying out of scheduled activities at any premises, under which power the EPL in this case was issued). The matters the parties say are relevant from s 45 are set out below.

  2. Section 45(b) of the POEO Act: the objectives of the EPA as referred to in s 6 of the Protection of the Environment Administration Act 1991 (POEA Act). The orders sought in the s34 Agreement are consistent with the objectives of the EPA:

  1. To protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, and

  2. To reduce the risks to human health and prevent the degradation of the environment, by means such as promoting pollution prevention.

The EPL Variation as amended will protect the environment and will reduce risks to human health and degradation of the environment due to the rigorous requirements for noise monitoring and mitigation of noise impacts from the licenced premises.

  1. Section 45(c) of the POEO Act: the pollution caused or likely to be caused by the carrying out of the activity or work concerned and the likely impact of that pollution on the environment. Noise pollution or impacts have been carefully considered through the Noise Impact Assessment Report by Ingen Consulting dated 9 April 2021 (NIA), and the Noise Monitoring Plan by Ingen Consulting dated 16 June 2021. Trial conditions have been prepared after the NIA demonstrated that compliance has been modelled as achievable, and with careful monitoring required to demonstrate operational compliance.

  2. Section 45(d) of the POEO Act: the practical measures that could be taken –

  1. To prevent, control, abate or mitigate that pollution, and

  2. To protect the environment from harm as a result of that pollution.

The noise conditions proposed in the EPL Variation as amended implement, and require practical measures to prevent, control, abate and mitigate noise pollution, by, amongst other things, setting noise limits and restricting noise-generating activities.

  1. Section 58 of the POEO Act provides that the appropriate regulatory authority may vary a licence (including the conditions of a licence – subs  (1)). A variation includes the attaching of a condition to a licence (whether or not any conditions have already been attached), the substitution, omission or amendment of a condition (subs (2)).

  1. By s 58(6) if the variation of a licence will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence, and the proposed variation has not, for any reason, been the subject of environment assessment under the Environmental Planning and Assessment Act 1979 (EPA Act), the appropriate regulatory authority is to invite and consider public submissions before it varies the licence.

  2. In the present case, as has been demonstrated by the NIA, the amended noise conditions in the EPL Variation will not authorise a significant increase in the environmental impact of the licenced activities at Clovass Quarry. Furthermore, the conditions proposed permit a trial of the new operating conditions with compliance a prerequisite to those conditions becoming permanent in the EPL Variation.

  1. 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:

  1. The EPA had the power to issue the EPL Variation pursuant to s 58(5) of the POEO Act, and the EPL Variation was issued on 28 September 2020.

  2. The Applicants commenced proceedings in this Court on 19 October 2020 to appeal the EPL Variation within the time provided under s  287(1); that is, within 21 days of receiving notification of the EPL Variation given by the EPA pursuant to s 287(1)(b).

  3. Pursuant to s 58 of the POEO Act the EPA issued the EPL Variation on its own initiative.

  4. Pursuant to s 292(1)-(2) the Court has power to hear and determine the appeal. Further pursuant to s 39 of the LEC Act, the Court on appeal has, for the purposes of hearing and disposing of the appeal, 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. That is, the Court has power under s 58 of the POEO Act to amend the EPL Variation, the subject of the appeal.

  5. The EPL, as varied by the EPL Variation, and amended in accordance with the terms of Annexure A hereto, addresses the contentions raised in this matter of the Dust Monitoring Location Gauge, and the potential for noise pollution. The NIA and the Noise Monitoring Plan by Ingen Consulting dated 16 June 2021 provide sufficient information for the assessment of the noise impact and noise amelioration. The noise contention has been addressed by the noise conditions proposed in Annexure A to amend the EPL Variation, and implement and require practical measures to prevent, control, abate and mitigate noise pollution, by inter alia, setting noise limits and restricting noise-generating activities.

  1. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

  2. The Court orders:

  1. The appeal is upheld.

  2. Environment Protection Licence No. 3372 concerning Clovass Quarry, Clovass Road, Casino NSW 2470 is varied by:

  1. Deleting the location description for dust monitoring gauge 2 in Condition P1.1 and inserting: “DDGO2 – located on Pearce’s property approximately 410m to the east of the Quarry as indicated on the amil from ENV Solutions Pty Ltd on 2 April 2020”.

  2. Deleting condition L4 and inserting new condition L4 in Annexure A hereto.

  3. Deleting conditions L6.2 and L6.3.

  4. Inserting new special conditions E1 and E2 in Annexure A.

  5. Inserting new definitions being those with dot points under the heading “Additions to Definition of Terms of the Licence” in Annexure A.

  1. Environment Protection Licence No. 3372 is varied as set out in Annexure B, dated the date of these Orders.

The Court notes that the parties have agreed that each party is to bear its own costs of these proceedings.

………………………

M Peatman

Acting Commissioner of the Court

Annexure A (131658, pdf)

Annexure B (462013, pdf)

                                                      ********

Decision last updated: 02 July 2021

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