Slade v Kempsey Shire Council - [2018] NSWCA 25

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Slade v Kempsey Shire Council [2018] NSWCA 25
Hearing dates: 17 November 2017
Decision date: 23 February 2018
Before: McColl JA at [1];
Macfarlan JA at [2];
Barrett AJA at [38]
Decision:
Appeal dismissed with costs.

Catchwords: ENVIRONMENT AND PLANNING – Environment Protection Agency (EPA) issued a clean-up notice to the appellants in respect of a metal recycling site – appellants failed to comply with the notice – EPA then issued a notice to the respondent council to clean up the site – whether any non-compliance by the respondent with the EPA’s notice to it affected the respondent’s right to recover its costs and expenses of the clean-up from the appellants
Legislation Cited: Protection of the Environment Operations Act 1997 (NSW), ss 91, 92, 104, 105, 110
Land and Environment Court Act 1979 (NSW), s 58(1)
Supreme Court Act 1970 (NSW), s 101(2)(e)
Cases Cited: Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570; [2008] HCA 57
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
O’Toole v Charles David Pty Ltd (1991) 171 CLR 232; [1991] HCA 14
Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359; [1931] HCA 21
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
Category: Principal judgment
Parties: Michael Phillip Slade (First Appellant)
Barry Phillip Slade (Second Appellant)
Kempsey Shire Council (Respondent)
Representation:
Counsel:
Self-represented Appellants
M W E Maconachie (Respondent)
Solicitors:
Self-represented Appellants
Higgins & Dix Lawyers & Conveyancers (Respondent)

File Number(s): CA 2017/87015
Decision under appeal

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 4

Citation:

[2015] NSWLEC 135 and [2017] NSWLEC 10

Date of Decision:

21 August 2015
27 February 2017

Before:

Biscoe J (21 August 2015)Sheahan J (27 February 2017)

File Number(s):

2014/40313 and 2016/165114

HEADNOTE

[This headnote is not to be read as part of the judgment]

In 2011 Mr Michael Slade (the first appellant) became the lessee of part of a Crown reserve at Kempsey, managed by Kempsey Shire Council (the respondent). Mr Slade conducted a recycling business on the site, with his father, Mr Barry Slade (the second appellant). Their company, Mid Coast Skip Bins & Metal Recycling Pty Ltd, took over the lease in 2011. The site was vacated in early 2012 and the lease was terminated by the Council later that same year.

In 2012 the Environment Protection Authority issued a Clean-Up Notice to the company and each of the appellants under s 91 of the Protectionof the Environment Operations Act 1997 (NSW). As satisfactory clean-up did not occur, in 2013 the EPA issued a notice to the Council under s 92(1) of the PEO Act requiring it to clean up the site. Accordingly, the respondent effected the clean-up, and served notices on each of the appellants under s 104(2) of the PEO Act requiring them to pay the respondent’s reasonable…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWCA 25
Decision Date: 23 February 2018

CaseChat Overview and Summary

Slade and others (the appellants) appealed to the Court of Appeal of the Supreme Court of New South Wales against a decision concerning the recovery of clean-up costs. The dispute arose after the Environment Protection Agency (EPA) issued a clean-up notice to the appellants in relation to a metal recycling site. When the appellants failed to comply with this notice, the EPA subsequently directed the respondent, Kempsey Shire Council, to undertake the clean-up. The Council then sought to recover its costs and expenses from the appellants.

The central legal issue before the Court of Appeal was whether any alleged non-compliance by the respondent Council with the EPA's notice to it prejudiced the Council's right to recover the costs and expenses it incurred in carrying out the clean-up from the appellants.

The Court of Appeal held that the Council's right to recover its costs and expenses was not affected by any alleged non-compliance with the EPA's notice. The Court reasoned that the statutory scheme under the *Contaminated Land Management Act 1997* (NSW) provided a clear mechanism for the recovery of clean-up costs from the polluter, irrespective of any procedural irregularities in the notice issued to the local council. The primary obligation to clean up the site rested with the appellants as the polluters, and their failure to comply with the EPA's initial notice triggered the Council's right to step in and recover its expenditure.

The appeal was dismissed, and the appellants were ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Slade v Kempsey Shire Council [2018] NSWCA 25
Hearing dates:	17 November 2017
Decision date:	23 February 2018
Before:	McColl JA at [1]; Macfarlan JA at [2]; Barrett AJA at [38]
Decision:	Appeal dismissed with costs.
Catchwords:	ENVIRONMENT AND PLANNING – Environment Protection Agency (EPA) issued a clean-up notice to the appellants in respect of a metal recycling site – appellants failed to comply with the notice – EPA then issued a notice to the respondent council to clean up the site – whether any non-compliance by the respondent with the EPA’s notice to it affected the respondent’s right to recover its costs and expenses of the clean-up from the appellants
Legislation Cited:	Protection of the Environment Operations Act 1997 (NSW), ss 91, 92, 104, 105, 110 Land and Environment Court Act 1979 (NSW), s 58(1) Supreme Court Act 1970 (NSW), s 101(2)(e)
Cases Cited:	Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570; [2008] HCA 57 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 O’Toole v Charles David Pty Ltd (1991) 171 CLR 232; [1991] HCA 14 Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359; [1931] HCA 21 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
Category:	Principal judgment
Parties:	Michael Phillip Slade (First Appellant) Barry Phillip Slade (Second Appellant) Kempsey Shire Council (Respondent)
Representation:	Counsel: Self-represented Appellants M W E Maconachie (Respondent) Solicitors: Self-represented Appellants Higgins & Dix Lawyers & Conveyancers (Respondent)
File Number(s):	CA 2017/87015
Decision under appeal	Court or tribunal: Land and Environment Court Jurisdiction: Class 4 Citation: [2015] NSWLEC 135 and [2017] NSWLEC 10 Date of Decision: 21 August 2015 27 February 2017 Before: Biscoe J (21 August 2015)Sheahan J (27 February 2017) File Number(s): 2014/40313 and 2016/165114