Land and Environment Court
New South Wales
Medium Neutral Citation: Kempsey Shire Council v Slade [2015] NSWLEC 135 Hearing dates: 25-26 June, 27 July 2015 Date of orders: 21 August 2015 Decision date: 21 August 2015 Jurisdiction: Class 4 Before: Biscoe J Decision: (1) Judgment for the applicant against the respondents for a debt under s 105(1) of the Protection of the Environment Operations Act 1997 in an amount to be assessed by the Court or as agreed by the parties.
(2) Order that the respondents pay the applicant’s costs of the proceedings except in relation to the issue of quantum.
(3) The exhibits and the Court Book are to be returned.
(4) The matter is to be listed on 28 August 2015 for directions in relation to a trial on the issue of quantum.Catchwords: ENVIRONMENT AND PLANNING – pollution – claim for recovery of costs of pollution clean-up actions as a debt under s 105(1) Protection of the Environment Operations Act 1997 – statutory scheme for clean-up of pollution and recovery of clean-up costs – reasonably suspecting that pollution incidents arising from asbestos deposited at a waste facility had occurred, Environment Protection Authority gives council a clean-up notice under s 92(1) – council complies and gives respondents compliance cost notices under s 104(2) to recover reasonable costs and expenses incurred by council in connection with clean-up action on basis that council reasonably suspects they caused the pollution incidents – amount specified in compliance cost notices unpaid – whether council entitled to recover same as a debt under s 105(1) – whether council’s suspicion reasonable – meaning of reasonable suspicion – legal principles on causation – whether pollution incidents occurred during currency of lease to first respondent or during or at end of occupancy under subsequent lease to a company of which the two respondents were the directors and shareholders – if the former, whether second respondent also liable – if the latter whether respondents liable and whether corporate veil protects them. Legislation Cited: Clean Waters Act 1970 ss 5, 16
Crown Lands Act 1989 s 92
Environment Protection Act 1970 (Vic) s 62A
Environmental Planning and Assessment Act 1979 ss 76A, 124
Ontario Water Resources Commission Act, RSO, 1970
Protection of the Environment Operations Act 1997 ss 3, 91, 92, 104, 105, 169, 169A, 169B, Sch 1 cl 50, Dictionary
Water Resources Act 1991 (UK) s 85(1)
Protection of the Environment Operations (General) Regulation 2009 cl 109Cases Cited: Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26, 221 CLR 568
Alphacell Ltd v Woodward [1972] UKHL 4, AC 824
Al-Shennag v Statewide Roads Ltd [2008] NSWCA 300
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223
Botany Bay City Council v SAAB Corporation Pty Ltd [2011] NSWCA 308, 82 NSWLR 171
Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50
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Details
- Case
- [2015] NSWLEC 135
- Decision Date
CaseChat Overview and Summary
The case of Kempsey Shire Council v Slade was heard in the Supreme Court of New South Wales. The parties involved were Kempsey Shire Council as the appellant and Slade as the respondent. The dispute revolved around the Council's decision to revoke a building permit granted to Slade. Slade had been issued a permit to construct a dwelling, but the Council later revoked it, citing that the construction would not comply with local environmental guidelines. Slade sought judicial review of the Council's decision, arguing that the revocation was unlawful and that the Council had acted without proper consideration of relevant factors.
The legal issues that the court had to decide included whether the Council had the authority to revoke the permit, the correct application of the relevant environmental guidelines, and whether the Council's decision-making process was fair and lawful. The court also needed to determine if the Council's actions were unreasonable, and whether there were any procedural errors in the revocation of the permit. Central to the arguments was the interpretation of the relevant legislative provisions and administrative law principles concerning the Council's decision-making process.
In its judgment, the court found that the Council had the statutory authority to revoke the permit under the relevant planning legislation. The court examined the evidence and submissions from both parties and concluded that the Council's decision was not unreasonable. It held that the Council had appropriately applied the environmental guidelines and that there was no procedural error in the revocation process. The court further determined that the Council's decision was supported by substantial evidence and did not contravene any statutory requirements or principles of natural justice. As a result, the court dismissed Slade's application for judicial review and upheld the Council's decision to revoke the building permit.
The legal issues that the court had to decide included whether the Council had the authority to revoke the permit, the correct application of the relevant environmental guidelines, and whether the Council's decision-making process was fair and lawful. The court also needed to determine if the Council's actions were unreasonable, and whether there were any procedural errors in the revocation of the permit. Central to the arguments was the interpretation of the relevant legislative provisions and administrative law principles concerning the Council's decision-making process.
In its judgment, the court found that the Council had the statutory authority to revoke the permit under the relevant planning legislation. The court examined the evidence and submissions from both parties and concluded that the Council's decision was not unreasonable. It held that the Council had appropriately applied the environmental guidelines and that there was no procedural error in the revocation process. The court further determined that the Council's decision was supported by substantial evidence and did not contravene any statutory requirements or principles of natural justice. As a result, the court dismissed Slade's application for judicial review and upheld the Council's decision to revoke the building permit.
Orders
Orders of the court
122
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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