Macquarie Generation v Hodgson

Macquarie Generation (the applicant) appealed to the Court of Appeal of New South Wales against orders made by Pain J. The dispute concerned alleged breaches of environmental protection legislation and common law nuisance arising from emissions from the applicant's power station. The applicant sought to set aside these orders.

The Court of Appeal was required to determine whether the applicant had breached its statutory duty under the *Protection of the Environment Operations Act 1997* (NSW) by exceeding emission limits, and whether the applicant was liable for nuisance. A key issue was whether the applicant's environmental protection licence contained an implied condition limiting emissions, and whether the defence of statutory authority, requiring reasonable care, was available to the applicant.

The Court of Appeal found that the licence did not contain an implied condition limiting emissions beyond what was expressly stated. Furthermore, the Court held that the applicant had taken all reasonable precautions and exercised all due diligence to prevent the emission, thereby establishing the defence of statutory authority. Consequently, the applicant was not liable for either the statutory offence or the nuisance claim.

The appeal was allowed with costs. The orders made by Pain J were set aside, and the applicant's notice of motion and amended summons were dismissed with costs, with certain exceptions for existing costs orders in favour of the applicant. The respondent was granted a certificate under the *Suitors Fund Act*.