Kempsey Shire Council v Slade [2015] NSWLEC 135

Land and Environment Court New South Wales

Medium Neutral Citation: Kempsey Shire Council v Slade [2015] NSWLEC 135 Hearing dates: 25-26 June, 27 July 2015 Date of orders: 21 August 2015 Decision date: 21 August 2015 Jurisdiction: Class 4 Before: Biscoe J Decision: (1) Judgment for the applicant against the respondents for a debt under s 105(1) of the Protection of the Environment Operations Act 1997 in an amount to be assessed by the Court or as agreed by the parties. (2) Order that the respondents pay the applicant's costs of the proceedings except in relation to the issue of quantum. (3) The exhibits and the Court Book are to be returned. (4) The matter is to be listed on 28 August 2015 for directions in relation to a trial on the issue of quantum. Catchwords: ENVIRONMENT AND PLANNING – pollution – claim for recovery of costs of pollution clean-up actions as a debt under s 105(1) Protection of the Environment Operations Act 1997 – statutory scheme for clean-up of pollution and recovery of clean-up costs – reasonably suspecting that pollution incidents arising from asbestos deposited at a waste facility had occurred, Environment Protection Authority gives council a clean-up notice under s 92(1) – council complies and gives respondents compliance cost notices under s 104(2) to recover reasonable costs and expenses incurred by council in connection with clean-up action on basis that council reasonably suspects they caused the pollution incidents – amount specified in compliance cost notices unpaid – whether council entitled to recover same as a debt under s 105(1) – whether council's suspicion reasonable – meaning of reasonable suspicion – legal principles on causation – whether pollution incidents occurred during currency of lease to first respondent or during or at end of occupancy under subsequent lease to a company of which the two respondents were the directors and shareholders – if the former, whether second respondent also liable – if the latter whether respondents liable and whether corporate veil protects them. Legislation Cited: Clean Waters Act 1970 ss 5, 16 Crown Lands Act 1989 s 92 Environment Protection Act 1970 (Vic) s 62A Environmental Planning and Assessment Act 1979 ss 76A, 124 Ontario Water Resources Commission Act, RSO, 1970 Protection of the Environment Operations Act 1997 ss 3, 91, 92, 104, 105, 169, 169A, 169B, Sch 1 cl 50, Dictionary Water Resources Act 1991 (UK) s 85(1) Protection of the Environment Operations (General) Regulation 2009 cl 109 Cases Cited: Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26, 221 CLR 568 Alphacell Ltd v Woodward [1972] UKHL 4, AC 824 Al-Shennag v Statewide Roads Ltd [2008] NSWCA 300 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 Botany Bay City Council v SAAB Corporation Pty Ltd [2011] NSWCA 308, 82 NSWLR 171 Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 Environment Agency v Empress Car Co (Ambertillery) Ltd [1999] UKHL 5, 2 AC 22 Environment Protection Authority v Mistring Pty Ltd [2013] NSWLEC 9, 82 NSWLR 784 Environmental Protection Authority v McConnell Dowell Constructions (Aust) Pty Ltd [2003] NSWLEC 70, 128 LGERA 240 George v Rockett [1990] HCA 26, 170 CLR 104 Leichhardt Council v Geitonia Pty Ltd (No 6) [2015] NSWLEC 51 Michigan Natural Resources Commission v Arco Industries Corporation 723 F. Supp. 1214 (W. D. Mich, 1989 North Sydney Council v Moline (No 2) [2008] NSWLEC 169 Premier Building and Consulting Pty Ltd v Spotless Group Ltd & Ors [2007] VSC 377, 64 ACSR 114 R v Bata Industries Ltd [1992] O.R. (3d) 329 R v Rondo [2001] NSWCCA 540, 126 A Crim R 562 R v Sault Ste. Marie (1978) 85 DLR (3d) 161, 2 S.C.R. 1299 Ruddock v Taylor [2005] HCA 48, 222 CLR 612 State Pollution Control Commission v Blue Mountains City Council (1991) 72 LGRA 34 State Pollution Control Commission v Hunt (1990) 72 LGRA 316 State Pollution Control Commission v Tiger Nominees Pty Ltd (1991) 72 LGRA 337 Stoneman v Lyons [1975] HCA 59, 133 CLR 550 Terranora Group Management Pty Ltd v Director-General Office of Environment & Heritage [2013] NSWLEC 198, 200 LGERA 1 Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 United States v Hodges X-Ray Inc 759 F. 2d 557 (6th Cir. 1985) United States v Hong 242 F. 3d 528 (4th Cir. 2001) United States v Park 421 US 658 (1975) United States v Universal Management Services Inc and Monea 191 F. 3d 750 (6th Cir. 1999) URS New Zealand Ltd v The District Court at Auckland [2009] NZHC 1778 Walker Corporation Pty Ltd v Director-General Department of Environment Climate Change and Water [2012] NSWCCA 210, 82 NSWLR 12 Category: Principal judgment Parties: Kempsey Shire Council (Applicant) Michael Phillip Slade (First Respondent) Barry Phillip Slade (Second Respondent) Representation: COUNSEL: M W E Maconachie (Applicant) A M Pickles and N G Hammond (Respondents)