Orica Australia Pty Ltd v Environment Protection Authority [2021] NSWLEC 1190

Land and Environment Court New South Wales

Medium Neutral Citation: Orica Australia Pty Ltd v Environment Protection Authority [2021] NSWLEC 1190 Hearing dates: Conciliation conference on 16 December 2020 and 18 March 2021 Date of orders: 22 April 2021 Decision date: 22 April 2021 Jurisdiction: Class 1 Before: Peatman AC Decision: See orders at [17] below Catchwords: VARIATION OF ENVIRONMENT PROTECTION LICENCE – remediation – public positive easement – easement for access – conditions necessary to protect the environment from pollution over a long period of time Legislation Cited: Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Protection of the Environment Administration Act 1991 Protection of the Environment Operations Act 1997 Cases Cited: Jeffman Pty Ltd and Lawrence Dry Cleaners Pty Ltd v Environment Protection Authority of NSW, Sydney Water Corporation and Douglas and Hilary Hutchinson [2011] NSWLEC 89 Category: Principal judgment Parties: Orica Australia Pty Ltd (Applicant) Environment Protection Authority (Respondent) Representation: Counsel: H Grace (Applicant) F Berglund (Respondent)

Solicitors: Herbert Smith Freehills (Applicant) Environment Protection Authority (Respondent) File Number(s): 2020/212653 Publication restriction: No

Judgment 1. COMMISSIONER: This an appeal against a Notice of Variation of Environment Protection Licence No. 2149 (EPL No. 2149) issued to Orica Australia Pty Ltd (ACN 004 117 828) by Lesley Corkhill (Unit Head Regulatory Operations - Metro West) of the NSW Environment Protection Authority (EPA) (by delegation) under s 58(5) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) dated 30 June 2020 being Notice No. 1591821 (2020 EPL Variation), and in particular against proposed Condition E1 of the EPL No. 2149. 1. The Applicant appeals under s 287(1) of the POEO Act as the holder of the EPL No. 2149 granted under s 55 of the POEO Act who is aggrieved by the decision of the EPA to issue the 2020 EPL Variation under s 58(5) of the POEO Act. 2. These proceedings fall within Class 1 of the Court's jurisdiction pursuant to s 17(a) of the Land and Environment Court Act 1979 (LEC Act). 3. The Court has jurisdiction to hear and dispose of the proceedings under ss 34 & 39 of the LEC Act and Part 9.2 of the POEO Act. 4. The Applicant is the holder of EPL No. 2149. On or around 18 May 2012, the Applicant was granted Major Projects Approval 09_0147 (MP Approval) for the Orica Remediation Project with respect to Lot 1 in Deposited Plan 63604, being known as Gate 1, 2 Christina Road, Villawood NSW 2163 (the Property). 5. These proceedings are an appeal against the Condition E.1 of the 2020 EPL Variation issued by the EPA on 30 June 2020 in relation to the Property.