Land and Environment Court New South Wales Medium Neutral Citation: Caltex Australia Petroleum Pty Limited v Greater Hume Shire Council [2018] NSWLEC 1461 Hearing dates: 24 August 2018 Date of orders: 30 August 2018 Decision date: 30 August 2018 Jurisdiction: Class 1 Before: Chilcott C Decision: See Orders at [8] Catchwords: CONSENT ORDERS: Notice of preventative action. Legislation Cited: Land and Environment Court Act 1979 Protection of the Environment Operations Act 1997 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Caltex Australia Petroleum Pty Limited (Applicant) Greater Hume Shire Council (Respondent) Representation: Solicitors: C Campbell, Sparke Hellmore (Applicant) M Rogers, Kell Moore Lawyers (Respondent) File Number(s): 2018/91895 Publication restriction: Nil Judgment Background 1. COMMISSIONER: Caltex Australia Petroleum Pty Limited (the Applicant) has appealed the decision of Greater Hume Shire Council (the Respondent) to issue a Notice of Preventative Action (the Notice) under s 96 of the Protection of the Environment Operations Act 1997 (PoEO Act). 2. The Notice requires that the Applicant take certain actions with respect to mitigating noise impacts arising as a consequence of its operations of a highway service station at 51 Albury St, Holbrook NSW. 3. The appeal against the Respondent's issue of the Notice comes to the Court under the provisions of s 289(1) within Part 9.2 of the PoEO Act, and in line with the Court's powers on appeal under s 39 of the Land and Environment Court Act 1979. 4. At Court on Friday 24 August 2018, the Parties advised that the contentions between them in this matter had been resolved, and they sought orders, by consent, that directions 1(b) and 1(c) of the Notice issued by the Respondent be modified to read as follows: (b) The Applicant is to carry out the development approved by Development Consent No. 10.2018.102.1 as determined by the Respondent on 25 July 2018 within 4 months of the date of these orders. (c) The time for compliance set out in paragraph (b) above may be extended for a period of up to ten weeks by agreement of the parties, if: (i) The Applicant gives written notice to the Respondent setting out the reasons why it may be not be able to comply with the time specified for compliance in direction 1(b); and (ii) Such written notice is given no less than 28 days before the time for compliance specified in direction 1(b); and (iii) The Applicant provides evidence to the Council demonstrating that it placed orders for the materials required to carry out the development; and (iv) The Respondent, acting reasonably, is satisfied that an extension of time should be given to carry out the development. 1. The Respondent advised that there had been one objector in this matter, and confirmed that the objector had been advised of the proposed basis for resolution of this matter between the Parties, and of the time and date of the consent orders hearing. 2. The Respondent further confirmed that the objector, having been advised or the proposed consent orders and hearing arrangements, had not sought to make representation at the hearing. 3. Based on the Respondent's advice at [5] and [6], I am satisfied that the requirements of Court's policy with respect to the granting of consent orders have been fulfilled, and that the consent orders sought by the Parties should be granted. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Paragraphs 1(b) and (c) of the Respondent's Direction to take Preventative Notice under s 96 of the Protection of the Environment Operations Act 1997 dated 6 March 2018 (Direction) are modified, as set out in Annexure 'A' to these orders, to read as follows: (b) The Applicant is to carry out the development approved by Development Consent No. 10.2018.102.1 as determined by the Respondent on 25 July 2018 within 4 months of the date of these orders. (c) The time for compliance set out in paragraph (b) above may be extended for a period of up to ten weeks by agreement of the parties, if: (i) The Applicant gives written notice to the Respondent setting out the reasons why it may be not be able to comply with the time specified for compliance in direction 1(b); and (ii) Such written notice is given no less than 28 days before the time for compliance specified in direction 1(b); and (iii) The Applicant provides evidence to the Council demonstrating that it placed orders for the materials required to carry out the development; and (iv) The Respondent, acting reasonably, is satisfied that an extension of time should be given to carry out the development. 1. No orders as to costs. ………………………………. Michael Chilcott Commissioner of the Court Annexure A (19.4 KB, pdf) ********** 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: 30 August 2018