Eveston v Environment Protection Authority [2021] NSWLEC 54

Land and Environment Court New South Wales

Medium Neutral Citation: Eveston v Environment Protection Authority [2021] NSWLEC 54 Hearing dates: 28 January, 10 and 31 March 2021 Date of orders: 28 May 2021 Decision date: 28 May 2021 Jurisdiction: Class 1 Before: Moore J Decision: See orders at [153] and [154] Catchwords: APPEAL - Applicant held an Environment Protection Licence (EPL) for a waste storage and resource recovery facility - was Environment Protection Authority (EPA) revoked the EPL when the facility no longer held valid development consent - the EPA attached conditions to the revoked EPL – conditions required removal of 6,860 cubic metres of waste by a specified date - the Applicant had lodged a $250,000 financial surety with the EPA - the Applicant requests variation of the revocation conditions to permit a staged release of the financial surety to fund removal of the waste - Applicant impecunious and unable to fund removal of the waste - the EPA rejects request - the Applicant commences proceedings challenging the refusal - EPA seeks dismissal of the proceedings on the basis that the Applicant's request is not capable of appeal - request not an application giving rise to appealable decision - appeal dismissed NOTICE OF MOTION - Applicant's EPL revoked in 2018 - the Applicant commences proceedings challenging the EPA's revocation conditions - proceedings referred to a conciliation conference - conciliation conference results in agreement to amend the revocation conditions - revocation conditions required the Applicant to remove all remaining waste by 21 September 2019 - the conciliation agreement extended time for completion of removal of waste by three months - Applicant unable to finance removal of the waste - waste not removed as required - in February 2021, Applicant seeks extension of deadline for removal until September 2023 - EPA opposes extension on the basis that the Court has no power to approve it - held that there is power to approve the amendments - EPA opposes the extension on the basis of no realistic possibility that removal of the waste would be effected if time extended - consideration of the Applicant's financial circumstances - Applicant impecunious -consideration of possibility of improvement in the Applicant's financial circumstances - asserted improvement in the Applicant's financial circumstances speculative as to the nature, timing and quantum - no realistic prospect of change in Applicant's financial circumstances permitting removal of the waste if extension of time granted - application for extension of time refused COSTS - EPA agrees not to seek costs in the financial surety release proceedings - EPA reserves its position with respect to costs concerning the time extension proceedings - no order for costs in the financial surety release proceedings - costs reserved in the time extension proceedings Legislation Cited: Civil Procedure Act 2005, s 26 Land and Environment Court Act 1979 s 34 and 56 Protection of the Environment Operations Act 1997, ss 65, 79, 81 and 287 Land and Environment Court Rules 2007, r 7.1 Uniform Civil Procedure Rules 2005, rr 1.12 and 36.5 Cases Cited: CIC Insurance Ltd v Bankstown Football Club (1997)187 CLR 384 Eveston v Environment Protection Authority [2019] NSWLEC 1050 FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 Kindimindi Investments Pty Limited v Lane Cove Council & Anor (2007) 150 LGERA 333; [2007] NSWCA 38 Mosman Municipal Council v Kelly (No 3) (2009) 167 LGERA 91; [2009] NSWLEC 92 Murphyores Incorporated Pty Limited v Commonwealth of Australia [1976] 136 CLR 1 Paino v Hofbauer (1988) 13 NSWLR 193 Reg v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177; [1965] HCA 27 Russo v Kogarah Municipal Council [1999] NSWCA 303 Texts Cited: COVID‑19 Pandemic Arrangements Policy Category: Procedural rulings Parties: Christopher Eveston (Applicant) Environment Protection Authority (Respondent) Representation: Counsel: Ms C Novak, barrister (Applicant) Ms T Epstein, barrister (on 28 January) and Ms R Withana, barrister (on 10 and 31 March) (Respondent)