N.Moit and Sons (NSW) Pty Ltd v Environment Protection Authority

[2016] NSWLEC 1620

Land and Environment Court

New South Wales

Case Name:	N.Moit & Sons (NSW) Pty Ltd v Environment Protection Authority
Medium Neutral Citation:	[2016] NSWLEC 1620
Hearing Date(s):	Conciliation conference on 8, 19 December 2016
Date of Orders:	20 December 2016
Decision Date:	20 December 2016
Jurisdiction:	Class 1
Before:	Martin SC
Decision:	See (4) below
Catchwords:	Financial assurance; Environment Protection Licence; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	N.Moit & Sons (NSW) Pty Ltd (Applicant) Environment Protection Authority (Respondent)
Representation:	Christopher Gough (Applicant) Sara Anderson (Respondent) Solicitors: Storey & Gough (Applicant) Office of Environment and Heritage (Respondent)
File Number(s):	2016/00268731
Publication Restriction:	No

JUDGMENT

1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

4. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

   (1)Appeal upheld in part.

   (2)Environment Protection Licence 4849 version dated 19 August 2016 is varied by:

   (a)Replacing condition E1.1(b) with the following:

   “(b) A financial assurance in the form of an unconditional and irrevocable and on demand guarantee from a bank, building society or credit union operating in Australia as "Authorised Deposit-taking Institutions" under the Banking Act 1959 of the Commonwealth of Australia and supervised by the Australian Prudential Regulatory Authority (APRA) must be provided to the EPA by 23 December 2016 to replace the financial assurance referred to in the previous paragraph. The financial assurance must be in favour of the EPA for a total amount to be held by the EPA of nine hundred thousand dollars ($900,000.00). The financial assurance is required to secure or guarantee funding for works or programs required by or under this licence. The financial assurance must contain a term that provides that any monies claimed can be paid to the EPA or, at the written direction of the EPA, to any other person."

   (b)Deleting conditions E1.1(c) and (d).

   …………….

   Rosemary Martin

   Senior Commissioner