Ryan v Northern Beaches Council

[2022] NSWLEC 1123

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ryan v Northern Beaches Council [2022] NSWLEC 1123

Hearing dates:

Conciliation conference on 31 January, 16 and 25 February 2022

Date of orders:

10 March 2022

Decision date:

10 March 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders:

(1) the appeal is upheld;

(2) pursuant to s 110 of the Protection of the Environment Operations Act 1997, the Prevention Notice issued by the Respondent to the Applicant dated 21 September 2021 (the Notice) is varied in accordance with the notice at Annexure ‘A’ to this Agreement.

Catchwords:

PREVENTION NOTICE – conciliation conference – agreement between the parties – orders

Legislation Cited:

Land and Environment Court Act 1979, s 34

Protection of the Environment Operations Act 1997, ss 6, 96, 110, 289 and 292

Texts Cited:

NSW Rural Fire Services Trail Design, Construction and Maintenance Manual, Soil Conservation Service NSW, 2017

Category:

Principal judgment

Parties:

Daniel Patrick Ryan (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
E Fleming (Solicitor) (Applicant)
A Gough (Solicitor) (Respondent)

Solicitors:
Swaab (Applicant)
Storey & Gough Lawyers (Respondent)

File Number(s):

2021/293582

Publication restriction:

No

Judgment

1. COMMISSIONER: Daniel Patrick Ryan (the Applicant) has the decision of Northern Beaches Council (the Respondent) to issue a Prevention Notice (the Notice) dated 21 September 2021, pursuant s 96 of the Protection of the Environment Operations Act 1997 (POEO Act), and the Respondent is the appropriate regulatory authority pursuant to s 6(2) of that Act.

2. The Notice directs the Applicant to undertake the following Actions at 20 Chiltern Road, Ingleside NSW 2101 (the Premises);

1. ensure that all future maintenance of the fire trail on the Premises is undertaken in accordance with Section 5 – Maintenance of existing trails contained in the NSW Rural Fire Services Trail Design, Construction and Maintenance Manual” published by the Soil Conservation Service NSW;

2. all material brought onto the Premises for the purposes of maintaining the fire trail, must be classified as Virgin Excavated Natural Material (VENM);

3. NSW Environmental Protection Agency (EP) VENM Certification documentation must be obtained for all material brought onto the Premises for the purposes of maintaining the fire trail. These certification documents must be retained and produced to an Officer with appreciate delegations under the POEO Act;

4. take environmentally appropriate actions to prevent any material or substance, other than stormwater migrating from the fire trail into the adjacent terrestrial ecosystem;

5. provide to Council a report prepared by a tertiary qualified and experienced environmental consultant to itemise the methods used, and confirm the completed implementation of all methods to comply with the Actions;

6. no materials or works associated with the maintenance of the fire trail are to cause air pollution as defined in the POEO Act, at any time.

3. The appeal comes to the Court pursuant to s 289 of the POEO Act and is determined under s 292 of that Act. The appeal within Class 1 of the Court’s jurisdiction.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which has been held on 31 January by Microsoft Teams, and subsequently on 16 and 25 February 2022 by telephone, and I have presided over the conciliation conference.

5. 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 the Court upholding the appeal and granting consent to the Applicant’s modification application, subject to conditions.

6. 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.

7. The Parties’ decision involves the Court exercising the function under s 110 of the POEO Act to revoke or vary the Prevention Notice.

8. There are further no jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. 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.

10. 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.

11. 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.

12. The Court orders:

1. the appeal is upheld;

2. pursuant to s 110 of the Protection of the Environment Operations Act 1997, the Prevention Notice issued by the Respondent to the Applicant dated 21 September 2021 (the Notice) is varied in accordance with the notice at Annexure ‘A’ to this Agreement.

M Chilcott

Commissioner of the Court

Annexure A (436347, pdf)

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Decision last updated: 10 March 2022