Maules Creek Community Council Incorporated v Environment Protection Authority [2024] NSWLEC 71

Land and Environment Court New South Wales

Medium Neutral Citation: Maules Creek Community Council Incorporated v Environment Protection Authority [2024] NSWLEC 71 Hearing dates: 14 - 16 May 2024, 28 June 2024 Date of orders: 18 July 2024 Decision date: 18 July 2024 Jurisdiction: Class 4 Before: Preston CJ Decision: (1) The proceedings are dismissed. (2) If any party seeks an order for costs, the party is to apply to the Court within 14 days of the date of this judgment. (3) If an application is made under order 2, the matter is to be listed for directions and the fixing of a hearing of the application for a costs order. (4) If an application is not made under order 2, there is to be no order as to costs with the intention that each party bear their own costs of the proceedings. Catchwords: ENVIRONMENT AND PLANNING – Environment protection licence – statutory requirement for review of licence – separate statutory requirement to consider matters in licence review – proceedings brought to remedy breach of statutory requirement to consider matters – privative clause precluding proceedings for failure to comply with requirement for licence review – whether proceedings precluded – consideration of whether licence holder fit and proper person – whether inference to be drawn from licence review record that matter not considered – considerations of impact of pollution and practical measures to mitigate pollution and environmental harm – whether inference to be drawn from licence review record that matters not considered. Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), Part 3A Judiciary Act 1903 (Cth), s 78B Land and Environment Court Act 1979 (NSW), s 20 Protection of the Environment Administration Act 1991 (NSW), ss 3, 9 Protection of the Environment Operations Act 1997 (NSW), ss 45, 55, 58, 61, 78, 83, 252; Chapter 3; Schedule 6 Land and Environment Court Rules 2007 (NSW), r 4.2 Cases Cited: Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 180 LGERA 99; [2011] FCAFC 59 Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority (2021) 250 LGERA 1; [2021] NSWLEC 92 Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 F Hannan Pty Ltd v Electricity Commission of NSW (No 3) (1985) 66 LGRA 306 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 IOF Custodian Pty Limited atf the 105 Miller Street North Sydney Trust v Special Minister of State [2022] NSWLEC 86 Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Parramatta City Council v Hale (1982) 47 LGRA 319 Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50 R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598; [1945] HCA 53 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 Sydney City Council v Building Owners and Managers Association of Australia Ltd (1985) 2 NSWLR 383 Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 Texts Cited: NSW EPA Climate Change Action Plan 2023-26 NSW EPA Climate Change Policy Category: Principal judgment Parties: Maules Creek Community Council Incorporated (INC9894709) (Applicant) Environment Protection Authority (First Respondent) Maules Creek Coal Pty Ltd (ACN 140 533 875) (Second Respondent) Attorney General for New South Wales (Intervenor) Representation: Counsel: R White, S Hoare and B Gallifuoco (Applicant) Z Heger (First Respondent) P Herzfeld SC and K Pham (Second Respondent) Z Heger (Intervener)