Land and Environment Court New South Wales Medium Neutral Citation: Verde Terra Pty Ltd v Environment Protection Authority (No 1) [2018] NSWLEC 159 Hearing dates: 9 October 2018 Date of orders: 09 October 2018 Decision date: 09 October 2018 Jurisdiction: Class 1 Before: Moore J Decision: See [19] Catchwords: SUMMARY DISMISSAL - statutory appeal rights against deemed refusal of application to vary Environment Protection Licence - appeal rights subject to statutory time limits - whether notice of deemed refusal from regulatory authority required prior to time for appeal right for deemed refusal of application commencing to run - no such notice requirement - time to appeal had expired prior to filing of appeal - no ability to extend time - appeal dismissed Legislation Cited: Civil Procedure Act 2005, s 64 Protection of the Environment Operations Act 1979, ss 58(1) and 287(1) and (3) Uniform Civil Procedure Rules 2005, r 13.4(1) Cases Cited: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9 Category: Procedural and other rulings Parties: Verde Terra Pty Ltd (Applicant and Respondent on the motion) Environment Protection Authority (Respondent and Applicant on the motion) Representation: Counsel: Mr P Larkin SC/Mr G Tsang, barrister (Applicant and Respondent on the motion) Mr H El-Hage, barrister (Respondent and Applicant on the motion) Solicitors: Ashurst (Applicant) Environment Protection Authority (Respondent) File Number(s): 170961 of 2018 Publication restriction: No Judgment 1. HIS HONOUR: Verde Terra Pty Ltd (the Company) is the holder of an Environment Protection Licence (EPL), EPL 11395, issued by the Environment Protection Authority (the EPA) under the Protection of the Environment Operations Act 1997 (the POEO Act), for the Company's waste disposal operations at Mangrove Mountain in the hinterland of the New South Wales Central Coast. 2. On 23 September 2015, the Company applied to the EPA for a variation of its EPL. There is an ability of the EPA to vary the licence (including varying conditions to the licence) that is vested in the EPA by s 58(1) of the POEO Act. Although there were exchanges between the Company and the EPA during the period up to 31 May 2018, the EPA has not determined the application made by the Company for variation of its EPL. 3. On 31 May 2018, the Company commenced these proceedings in Class 1 of the Court's jurisdiction concerning the application for variation of the EPL, seeking two substantive orders. First, that the appeal against the deemed refusal be upheld and, second, that EPL 11395 be varied in accordance with Application 1558295 dated 21 September 2015 purporting to be received by the Environment Protection Authority on 25 September 2015. The differences between dates, as enunciated in the proposed second order, are of no relevance in these proceedings. 4. On 3 October 2018, the EPA filed a Notice of Motion in these Class 1 proceedings concerning the 2015 variation application seeking that the proceedings be dismissed and that the Applicant, that is the Company, pay the EPA's costs of the proceedings and of the motion. 5. The rights to appeal to the Court concerning licence applications, including applications to vary licences, are contained in s 287 of the POEO Act. The elements of that provision are relevant in these proceedings on the Notice of Motion. First, s 287(1) provides as follows: Any person: (a) Who makes a licence application and who is agreed by the decision of the appropriate regulatory authority in respect of the application or; (b) Who is or was the holder of a licence and who is agreed by any decision of the appropriate regulatory authority with respect for the licence May, within 21 days or such period, or such other period as is prescribed instead by the regulations I interpolate there is no such other period provided for by the regulations. after being given notice of the decision of that Authority, appeal to the Land and Environment Court against the decision. 1. There is no issue in these proceedings that there has been any actual decision made by the EPA concerning the 23 September 2015 application, nor that there has been any notice given by the EPA to the Company concerning it. 2. However, s 287(3) of the POEO Act also makes provision for what are regarded as, in colloquial terms, "deemed refusals". It provides as follows: For the purposes of this section the licence application is taken to have been refused. Then follows (a) and (b) which are not presently relevant and: (c) in any other case, if the application is not granted within 60 days after it is duly made. 1. The EPA's position is that the combination of s 287(1) and 287(3) means that, after the effluxion of 81 days from the making of the application on 23 September 2015 (that is by some date in mid- to late November 2015) a "deemed refusal" was to have occurred and the right of appeal was to have run and expired, pursuant to s 287(1) and (3) operating together. 2. In these proceedings, the EPA, as I have earlier noted, has applied to have them dismissed. The Notice of Motion does not plead any specific power based on statute for me to do so and simply relies, as I was again advised by Mr El-Hage, counsel for the EPA, on my power to deal with the matter in the substantive proceedings. 3. Mr Larkin SC, counsel for the Company, says that there is no such general power but concedes, to the extent that there might need to be a statutory foundation for me to deal with the Notice of Motion, that would arise pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (the UCPR), a provision that permits me to dismiss proceedings if I am satisfied that no reasonable cause of action is disclosed. 4. It seems to me that it is unnecessary for me to make a determination as to the availability of a general power to deal with that which is sought in the Notice of Motion. However, for abundant caution to the extent that it may be necessary (if it is necessary), I order, pursuant to s 64(1)(a) of the Civil Procedure Act 2005 (the Civil Procedure Act) that the Notice of Motion be amended so that the reliance for the proposed first order arises from r 13.4(1)(b) of the UCPR as necessary for the purposes in s 64(2) of the Civil Procedure Act. 5. First, it is to be observed that s 287(3) of the POEO Act is to be regarded as facultative and beneficial for an Applicant for variation of an EPL by a person who has made some application to the EPA that is within the scope of the section. It is, however, one which is, in its terms, to be approached, potentially circumscribed, in the fashion dealt with by Brennan CJ in [37] of Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky). In that paragraph, his Honour explained why it is necessary for a repository of power to exercise that power subject to any limitations including, by necessary inference, temporal limitations, that arise from the giving of that power. That must be the approach to be taken in my consideration of the powers that arise under s 287(1) and 287(3) of the POEO Act. 6. It is the submission on behalf of the Company that it is necessary, for the ability to trigger the running of time against the Company, that there must be some notice of the decision given to the Company for the 61 days to commence to run. It is the Company's position that, as at May 2018, no notice of any kind pursuant to s 287(1) has been given and, therefore, unless and until such notice is given, time does not run and the proceedings remain on foot. 7. It is clear from what was written by the plurality in the oft-cited elements at [70] and [71] of Project Blue Sky that, wherever there might potentially be a conflict in legislation, the meaning of the competing provisions must be adjusted in a fashion to give the best effect to the purpose and language of those provisions while maintaining the unity of all statutory provisions applicable. 8. It seems to me that the proposition advanced by Mr Larkin, that it is necessary for there to be a notice of a decision of a deemed refusal prior to time running under s 287(1) and 287(3), is entirely antithetic to the intention of the Act, which is to provide by s 287(3) a beneficial and facultative opportunity for an applicant to the EPA (relevantly) to take action in this Court if the applicant considers that dilatory conduct on behalf of the EPA is disadvantaging them and they are unable to get a decision and absent some notice, as Mr Larkin postulates, under 287(1). 9. It seems to me that it is necessary that s 287(3) operate separately and independently of s 287(1) as to notice to the extent that it might be necessary to reach some alternative conclusion. In that regard, the High Court dealt, in Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9, with the question of what is appropriate to do when one is faced with a conundrum as to how a statutory provision might be explained by what the plurality said, at [37]: Consistent with the Court's rejection of the adoption of rigid rules of statutory construction, it should not be accepted that purposive construction may never allow the reading of a provision as if it contained additional words or omitted words with the effect of expanding its field of operation. 1. Although, in dissent, Gageler J and Kean J also wrote, at [66]: Context more often reveals statutory text to be capable of a range of more awkward than others but nonetheless of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on the linguistic fit than on the valuation of the relevant coherence of the alternatives that identify statutory objects of policies. 1. There is no such necessity here. It is clear that the relevant statutory object and policy that is set out in s 287 of the POEO Act is to provide a mandated time-limited right of appeal against a decision where there is an actual refusal notified in writing to an applicant and pursuant to s 287(3) to provide a facultative right of appeal against a deemed refusal by the EPA, relevantly in this instance, against a determination or a failure to determine a licence, a deemed determination or a failure to determine. The time has expired. 2. As a consequence, I have reached the conclusion that the proceedings should be dismissed. I am satisfied that, given that this is a procedural motion dealing with statutory interpretation, it is appropriate to order the Company to pay the EPA's costs of the motion. The question of whether the costs should be ordered against the Company for the totality of these proceedings is a matter on which I will give a ruling if required. Note: The orders subsequently entered to give effect to this ruling were: 1. The proceedings are dismissed; 2. The Applicant is to pay the Respondent's costs of the Notice of Motion; and 3. The costs of the proceedings are reserved. ********** 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: 18 October 2018