Land and Environment Court New South Wales Medium Neutral Citation: Dial-A-Dump (EC) Pty Ltd v Environment Protection Authority [2022] NSWLEC 1131 Hearing dates: Conciliation conference held on 28 January 2022 and 17 February 2022 Date of orders: 30 March 2022 Decision date: 30 March 2022 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) The appeal is upheld. (2) Environment Protection Licence No. 13426 is varied as set out in Annexure A and permitted according to conditions described in Annexure B. Catchwords: ENVIRONMENT PROTECTION LICENCE – additional conditions to address odour – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979, s 34 Protection of the Environment Operations Act 1997, ss 58, 287, 292 Category: Principal judgment Parties: Dial-A-Dump (EC) Pty Ltd (Applicant) Environment Protection Authority (Respondent) Representation: Counsel: P Larkin SC (Applicant) H El-Hage (Respondent) Solicitors: Ashurst (Applicant) Environment Protection Authority (Respondent) File Number(s): 2021/279179 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against notice number 1612304 (the notice) issued by the Environment Protection Authority (hereafter the EPA) to add conditions L3.7 and O5.5 to Environment Protection Licence 13426 (the EPL) for landfill operations on Lot 1 DP 1145808 and Lot 2 DP 1247691, also known as 1 Kangaroo Avenue, Eastern Creek (hereafter the site). 2. The EPA issued the notice to vary the conditions of the EPL in response to odour complaints. 3. This Class 1 appeal is made pursuant to s 287 of the Protection of the Environment Operations Act 1997 (POEO Act). 4. The Court agreed to the parties' request for a conciliation conference, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was conducted by MS Teams and without a site view. 5. Based on the amended EPL (conditions), the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The restriction on the nominated odour producing waste material is agreed by the parties, as described in condition L3.7. The parties agreed to delete proposed condition O5.5. 6. The parties agree that the contentions of the EPA have been considered and are resolved by the agreed amendments to the conditions attached to the EPL, as described in Annexure A. The parties agree that the terms and conditions of the amended EPL, as described in Annexure B are capable of being complied with in the operation of the landfill. 7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 292 of the POEO Act, to amend the EPL, as described in Annexure 'A', and according to the terms and conditions in Annexure B. 8. The parties identified the jurisdictional prerequisites of relevance in these proceedings, as being consistent with the POEO Act and Environmental Planning and Assessment Act 1979. The amendments to the EPL have been considered in the context of the reasonable needs of the existing operator, the function of the landfill, protection of sensitive receptors and relevant legislative provisions. 9. As explained to the Court, the parties agree that all jurisdictional requirements are resolved, and that the Court should not be constrained to amend the EPL, as agreed. The merit assessment requirements to amend the conditions of the EPL have been undertaken by the EPA. 10. Based on the evidence before me, as provided by the parties in the conciliation, I am satisfied that there are no jurisdictional impediments to the amendment to the conditions of Environment Protection Licence 13426, pursuant to s 58(2) of the POEO Act. 11. 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. 12. The Court orders that: 1. The appeal is upheld. 2. Environment Protection Licence No. 13426 is varied as set out in Annexure A and permitted according to conditions described in Annexure B. ………………………… Sarah Bish Commissioner of the Court Annexure A (8996, pdf) Annexure B (230087, pdf) ********** Amendments 08 April 2022 - Amended typographical errors in 'Representation' section. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 April 2022