Mimosa Rehabilitations Pty Ltd v Environment Protection Authority

[2024] NSWLEC 1221

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mimosa Rehabilitations Pty Ltd v Environment Protection Authority [2024] NSWLEC 1221

Hearing dates:

Conciliation Conference 28 February, 9 April 2024

Date of orders:

26 April 2024

Decision date:

26 April 2024

Jurisdiction:

Class 1

Before:

Targett AC

Decision:

The Court orders that:

1) The appeal is upheld.

2) Notice of Revocation of Licence No. 2509, under Notice reference Number 1628815, is revoked.

Catchwords:

ENVIRONMENT PROTECTION LICENCE – REVOCATION NOTICE – conciliation conference – agreement between the parties – orders

Legislation Cited:

Land and Environment Court Act 1979 ss 17, 34

Protection of the Environment Operations Act 1997 ss 45, 79, 287, 292, Sch 1 Pt 1 cl 39(2)(e)

Category:

Principal judgment

Parties:

Mimosa Rehabilitations Pty Ltd (Applicant)
Environment Protection Authority (Respondent)

Representation:

Counsel:
J Smith (Applicant)
J Marshman (Solicitor) (Respondent)

Solicitors:
Foundation Law Group (Applicants)
Environment Protection Authority (Respondent)

File Number(s):

2023/268182

Publication restriction:

No

Judgment

COMMISSIONER:

1. This is a Class 1 Development Appeal pursuant to s 287(1)(a) of the Protection of the Environment Operations Act 1997 (POEO Act) against the Notice of Revocation of Licence No. 2509 (Revocation Notice No. 1628815 dated 7 August 2023) issued by the respondent under s 79 of the POEO Act to the applicant (Revocation Notice), revoking Environment Protection licence No. 2509 (EPL) relating to land identified as Lot 2 in Deposited Plan 773067, known as “Korrongulla” – Windang Road, Primbee, NSW (Premises).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(a) of the Land and Environment Court Act 1979 (LEC Act).

Background

3. The Premises has an approximate area of 12.88ha and perimeter of 1.91km.

4. The Premises and Lot 1 in Deposited Plan 653310 (collectively, the Site) benefits from development consent DA-1982/539, granted by the Land and Environment Court on 18 April 1984, with a further Court amendment granted on 13 September 1985 (Consent).

5. The Consent relevantly permits the extraction of approximately 1.5 million tonnes of sand from the Site and emplacement of approximately 3 million tonnes of metallurgical slag produced from the Port Kembla smelter and refinery on the Site.

6. Prior to the issue of the Revocation Notice, the Premises had the benefit of the EPL issued by the respondent on 30 December 1999, which relevantly permitted the scheduled activities of:

1. Coal Works – Coal Washery Reject or Slag Landfilling; and

2. Waste Disposal (application to land),

3. at the Premises.

7. It is noted that the slag emplacement area authorised by the Consent is situated within the licensed Premises.

8. Condition L2.3 of the EPL (prior to its revocation) relevantly permitted the following wastes to be received at the Premises:

1. Copper slag waste generated by the Port Kembla Copper Smelter; and

2. Virgin excavated natural material – to be used for engineering purposes, such as construction of roads and as cover material.

9. On 18 October 2012, Port Kembla Copper Pty Limited (the previous owner of the Site) applied to Wollongong City Council to modify the Consent. On 30 April 2013, the respondent approved the modification application (Modified Consent). Relevantly, condition 48 of the Modified Consent provides as follows:

“The development is to be completed within twenty five (25) years of the date of commencement of sand mining. The Company shall notify the Council in writing of the date of commencement of sand mining. The remediation and rehabilitation works shall be complete by the end of 2016.”

10. The EPL was transferred from Port Kembla Copper Pty Limited to the applicant on 25 November 2022.

11. On 20 June 2023, the respondent sent a letter to the applicant indicating its intention to issue a Notice of Revocation of Licence No 2509 on the basis that, in the respondent’s view, the scheduled activities covered by the EPL were no longer being carried out at the Premises.

12. On 11 July 2023, the applicant prepared a detailed letter of representation to the respondent objecting to the proposed revocation.

13. On 7 August 2023, the respondent issued the Revocation Notice. The Revocation Notice relevantly provided the following background:

1. Copper slag waste generated by the Port Kembla Copper Smelter ceased following the closure of the copper smelter in 2003. The smelter was demolished in 2014.

2. Cl 39(2)(e) of Schedule 1, Part 1, of the POEO Act provides that the scheduled activity of “Waste disposal (application to land)” does not apply to an activity that involves sites where only virgin excavated materials received from off site and applied to land.

3. No other wastes are currently permitted to be received at the Premises.

4. The fee-based activity of Coal Washery Reject or Slag Landfilling has been removed from the Protection of the Environment Operations (General) Regulation 2022.

14. The applicant commenced Class 1 proceedings on 25 August 2023 pursuant to s 287 of the POEO Act, being within the appeal period specified in s 287(1) and (7) of the POEO Act.

15. On 28 August 2023, the applicant lodged a modification application with Wollongong City Council seeking to modify the Modified Consent, namely condition 48, by seeking a further 15 years to complete remediation and rehabilitation works permitted under the Modified Consent at the Site and Lot 1 in Deposited Plan 773067 (Modification Application).

16. On 6 February 2024, Wollongong City Council refused the Modification Application.

17. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 28 February 2024 and subsequently adjourned to 9 April 2024. I presided over the conciliation conference.

18. During the conciliation conference, the parties reached agreement as to the appropriate resolution of this matter. The parties provided a signed s 34 agreement and accompanying jurisdictional statement on 9 April 2024.

19. The agreement reached is for the Revocation Notice to be revoked and the EPL suspended until such time as the future use of the Premises is known. These proceedings are limited to the first component of the agreement reached by the parties, with the latter component being a separate matter for the parties.

Jurisdictional considerations

20. To make orders in accordance with the parties’ agreement, I must be satisfied that the decision to revoke the Revocation Notice is a decision that the Court can make in the proper exercise of its functions (being the test applied by s 34(3) of the LEC Act). In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

21. Section 292 of the POEO Act regarding appeals relating to environment protection licences or environment protection licence applications, provides as follows:

1. 292 Determination of appeals

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

3. 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.

22. It is clear that the Court has power to revoke a Revocation Notice issued under s 287 of the POEO Act.

23. For completeness, I note that s 45 of the POEO Act relevantly provides that, in exercising its functions under Chapter 3 of the POEO Act (environment protection licences), the appropriate regulatory authority (or Court in this case) is required to take into consideration such of the matters specified in s 45 as are of relevance.

24. The parties agree that the relevant matters listed in s 45 of the POEO Act have been considered in reaching agreement in this matter. To the extent that the matters listed in s 45 of the POEO Act are relevant to the determination of this appeal, I confirm that they have been considered by the Court.

25. I am satisfied the Revocation Notice should be revoked on the basis that:

1. The applicant is still considering its position in relation to the refusal of the Modification Application.

2. The ultimate outcome of the Modification Application, or similar application to Wollongong City Council to extend the timeframe for works at the Premises, will affect the scope and operation of the EPL such that it is appropriate, at this stage, to defer determining whether the EPL should be revoked.

3. The parties have agreed that although the Revocation Notice should be revoked, the respondent will suspend the EPL to allow time for the completion of the development application/modification application process with Wollongong City Council.

4. The revocation of the Revocation Notice is therefore within the scope of s 292 of the POEO Act.

26. 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.

27. The Court notes that the parties have agreed that, following the revocation of the Revocation Notice, the respondent will issue a Notice of Suspension of the EPL generally in accordance with Annexure A.

28. The Court orders that:

1. The appeal is upheld.

2. Notice of Revocation of Licence No. 2509, under Notice reference Number 1628815, is revoked.

N Targett

Acting Commissioner of the Court

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Annexure A

Decision last updated: 26 April 2024