JET Group Australia Pty Ltd v Environment Protection Authority [2018] NSWLEC 49

Land and Environment Court New South Wales

Medium Neutral Citation: JET Group Australia Pty Ltd v Environment Protection Authority [2018] NSWLEC 49 Hearing dates: 10 April 2018 Date of orders: 12 April 2018 Decision date: 12 April 2018 Jurisdiction: Class 1 Before: Moore J Decision: (1) The appeal is upheld; (2) The decision and orders made by the Commissioners on 19 October 2017 are set aside; (3) The proceedings are remitted to be determined by a Commissioner in accordance with this decision; (4) The Respondent is to pay the Appellant's costs of the appeal as agreed or assessed; and (5) The exhibits are returned. Catchwords: APPEAL - appeal pursuant to s 56A of Land and Environment Court Act 1979 - appeal confined to questions of law - appeal against conditions imposed by Commissioners on an Environment Protection Licence APPEAL - first ground of appeal that Commissioners failed to give reasons for imposing contested element of an operational condition - issue clearly in contest - issue subject to partial agreement by relevant experts - although this contested issue was not subject of submissions by counsel for the Appellant before the Commissioners, it was expressly addressed by counsel for the Respondent who clearly set out the nature of the competing positions - issue not merely subsidiary or incidental or subsumed by matter in contest addressed by the Commissioners - condition sought by the Respondent incorporated in conditions imposed by order (2) made by the Commissioners - no explanation given by the Commissioners for adopting the position advanced by the Respondent in preference to that sought by the Appellant - absence of reasons on contested issue vitiated the Commissioners' decision to impose the condition - matter remitted for determination of contested condition APPEAL - second ground of appeal that Commissioners relied on the provisions of the wrong statute in imposing a condition requiring the Appellant to provide financial assurance in a specified amount to the Respondent - ground conceded by the Respondent - concession properly made - matter remitted for determination of financial assurance issue pursuant to correct statutory provisions COSTS - costs follow the event in s 56A appeals - Respondent to pay Appellant's costs as agreed or assessed Legislation Cited: Civil Procedure Act 2005, s 98 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979, s 56A Protection of the Environment Operations Act 1997, ss 53 and 287, Sch 1 Uniform Civil Procedure Rules 2005, Pt 42 r 42.1 and Sch 1 Cases Cited: Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 Jet Group Australia Pty Ltd v Environment Protection Authority [2017] NSWLEC 1588 Segal & Anor v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Wiki v Atlantis Relocations (NSW) Pty Limited (2004) 60 NSWLR 127; [2004] NSWCA 174 Category: Principal judgment Parties: JET Group Australia Pty Ltd (Appellant) Environment Protection Authority (Respondent) Representation: Counsel: Mr P Clay SC/Ms N Hammond, barrister (Appellant) Mr C Norton, barrister (Respondent)