Land and Environment Court New South Wales Medium Neutral Citation: Verde Terra Pty Ltd v Environment Protection Authority (No 2) [2018] NSWLEC 160 Hearing dates: 11 October 2018 Date of orders: 18 October 2018 Decision date: 11 October 2018 Jurisdiction: Class 1 Before: Moore J Decision: See [34] and note at the conclusion of the judgment Catchwords: NOTICE OF MOTION - applicant seeks order requiring public consultation on proposed variation to Environment Protection Licence - Environment Protection Authority resists order for public consultation - lack of precision in proposed order - amended proposed order - power to make order requiring public consultation - proposed terms of orders and draft advertisement provided to the parties - making of orders adjourned to permit the parties to discuss the terms of the proposed orders and draft advertisement - orders subsequently made Legislation Cited: Civil Procedure Act 2005, ss 56, 61 and 98(1) Land and Environment Court Act 1979, s 38(4) Protection of the Environment Administration Act 1991, s 8(f) Protection of the Environment Operations Act 1997, s 58(6) Uniform Civil Procedure Rules 2005 Category: Procedural and other rulings Parties: Verde Terra Pty Ltd (Applicant) Environment Protection Authority (Respondent) Representation: Counsel: Mr P Larkin SC/Mr G Tsang, barrister (Applicant) Mr H El-Hage, barrister (Respondent) Solicitors: Ashurst (Applicant) Environment Protection Authority (Respondent) File Number(s): 246174 of 2018 Publication restriction: No Judgment 1. HIS HONOUR: Verde Terra Pty Ltd (the Company) applied, by application dated 2 August 2018, to the Environment Protection Authority (the EPA) to vary the Company's Environment Protection Licence (EPL) 11395 for the Company's landfill/waste disposal facility at Mangrove Mountain. 2. The scope of the proposed variation would, as I understood it, involve: 1. a 10-year extension of the operation of the facility; 2. extension of the facility to locations not currently subject to land filling on the site; 3. the disposal of more than 1.3 million tonnes of additional waste, including putrescible waste [1] (not currently permitted pursuant to the EPL); and 4. the placing of more than 1.3 million tonnes of excavated material on the site in the addition to the waste proposed to be disposed of pursuant to the variation. 1. The EPA has considered and refused the Company's application. 2. On 10 August 2018, the Company exercised its rights pursuant to s 287(1) of the Protection of the Environment Operations Act 1997 (the POEO Act) to appeal to the Court against the decision of the EPA not to vary the licence as requested. The terms of the appeal sought an order, as its primary relief, that EPL 11395 be varied in accordance with the application made to the EPA on 2 August 2018. Section 39(2) of the Land and Environment Court Act 1997 (the Court Act) vests in the Court, for the purposes of this appeal and its hearing and disposition, all of the functions and discretions which the personal body whose decision is the subject of the appeal had in respect to the matter that is the subject of the appeal. 3. In colloquial terms the Court is described as "standing in the shoes" of the EPA for this purpose. It is, however, a matter of distinction of potential importance that, although the Court is exercising, as the statutory provision applies, the functions and discretions which the EPA has, the Court is not in fact becoming the authorising regulatory authority for the purposes of the POEO Act or, indeed, the Protection of the Environment Administration Act 1991 (the POEA Act), a statute to which I will also need to return later in these reasons. 4. On 9 September 2018, the Company filed a Notice of Motion in these proceedings. That Notice of Motion sought two substantive orders: 1. That the Respondent is to invite public submissions in relation to the application to vary EPL 11395 dated 2 August 2018 by such means and within such time as may be agreed between the parties or as the Court directs, and 2. The Respondent is to file and serve a copy of any submissions received within seven days of completion of compliance with (1) above. 1. As I indicated to Mr Larkin SC appearing for the Company, even if I concluded that it was appropriate to make an order for consultation, the proposed Order (1) in the Notice of Motion was too vague and imprecise to be able to be contemplated as an outcome for this Notice of Motion. The consequence of that was that, on 10 October 2018, the Company provided an Amended Notice of Motion, which was filed in Court and for which leave was granted for reliance (without objection from the EPA). 2. That Amended Notice of Motion provided for an alternative to the proposed Order (1) that had been in the original Notice of Motion. The alternatives were contained in proposed Orders 1A to 1E and a revision of the earlier proposed Order (2). These orders were in the following terms: 1A The Respondent is to publish a notice in the Central Coast Express Advocate on or before (such date as the Court sees fit) (the notice) regarding the application made by the Applicant to the Respondent to vary Environment Protection Licence 11395 on 2 August 2018 variation application and again, a week thereafter; 1B The notice must describe the variation application and invite public submissions on the variation application, to be made in writing to the Respondent on or before 30 days after the first date of publication notice period; 1C The Respondent is to exhibit the notice on the land to which the variation application relate during the notice period; 1D The Respondent is to make available on its website, and at the Respondent's principal office, during the notice period the variation application and documents accompanying the variation application; 1E The Applicant is to pay the Respondent's costs of complying with Orders 1A to 1D up to a maximum of $5,000 and the revised Order 2 provided for the filing and serving of any submission received within 14 days after the closure of the period for which the notice would operate, rather than the originally proposed seven days. 1. Mr El-Hage, counsel appearing for the EPA, resisted the making of any order for consultation on two bases, as I understood his submissions. 2. First, that the Court had no appropriate power to require such consultation and, second, if I did not accept that the Court lacked power, then it was premature for the Court to contemplate doing so - given that there was a significantly contested issue in the proceedings as to whether or not the Court could grant the variations sought without the requirement for some modification to the existing development consent of which the Company has the benefit, or the making assessment and positive determination of some fresh development application by the Company that would encompass the activities envisaged by the variation application. 3. There are a number of matters that arise out of these submissions. 4. I turn to address the relevant provisions of the POEO Act that could potentially give rise to a power for the Court to order the consultation proposed. They are to be found in s 58(6) of the Act. This provision provides that if: (a) the variation of a licence will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence; and (b) the proposed variation has not, for any reason, been the subject of an environmental assessment and public consultation under the Environmental Planning Assessment Act 1979 the appropriate regulatory authority is to invite and consider public submissions before it varies the licence. 1. There are two barriers, on the EPA's submission, with respect to the potential power arising under this provision. 2. The first is that the Court is not the regulatory authority for the purposes of the Act - it merely exercises the powers and functions of the regulatory authority as I have earlier indicated. 3. Second, on Mr El-Hage's submission, the EPA is functus officio and cannot be required to carry out the consultation process that might otherwise arise if the matter was still in the hands on the EPA and had not actually been refused. The requirement to invite and consider public submissions before variation takes place to the licence is something that is invested in the regulatory authority. 4. I am satisfied that, for the reasons advanced by Mr El-Hage, the Court does not have power pursuant to that provision of the POEO Act to order the consultation sought by the Company. 5. Second, Mr Larkin submitted that the general powers of the authority given by s 8 of the POEA Act, particularly that which is provided for in s 8(f), that is a power to invite and consider public submissions relevantly when it amends licences under the environmental protection legislation, is also a matter that could provide a power to mandate consultation as proposed by the Company. 6. For the reasons I have given with respect to the terms of s 58 of the POEO Act, I am satisfied that the Court does not have the power, pursuant to that provision, to require consultation as sought by the Company. 7. There are, however, two other powers pursuant to which I am satisfied I may order consultation as proposed or in some other form determined by the Court as being appropriate. They arise from the terms of, first, s 38(4) of the Land and Environment Court Act 1979 (the Court Act), a provision which reads: In proceedings in Class 1 [relevantly] of the Court's jurisdiction, the Court may, in respect of a matter not dealt with by this Act or the rules, give directions as to the procedure to be followed at or in connection with the hearing of the appeal. 1. I am satisfied that, in the present context, the words "in connection with the hearing" include all necessary appropriate and relevant pre-trial directions that might be appropriate in the opinion of the Court to enable the Court to exercise its functions in hearing and determining these Class 1 proceedings. 2. However, if I am wrong in concluding that s 38(4) of the Court Act provides a power to order such consultation I am satisfied that s 61(1) of the Civil Procedure Act 2005 (the Civil Procedure Act), a provision that reads: The Court may, by order, give such directions as it thinks fit, whether or not inconsistent with the rules of court, for the speedy determination of the real issues between the parties to the proceedings. 1. There are then set out in s 61(2) a number of expressly enumerated powers, which include in s 61(2)(a) that the Court may direct any party to proceedings to take specified steps in relation to the proceedings. 2. I am satisfied that public consultation, for the purposes of informing the Court about the issues that arise potentially from the Company's appeal, are matters that arise in relation to the proceedings. 3. I am also satisfied that ordering consultation in reliance on both of those powers is appropriate for the purposes of the overriding purpose of the Civil Procedure Act set out in s 56(1), that is, to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 4. To the extent that Mr El-Hage suggests that, if I was to conclude that I did have power (as I have explained I am satisfied I do), it is not appropriate that I exercise that discretion at this time, I am satisfied that that submission is misplaced and that it would be consistent with the objective in s 56 of the Civil Procedure Act to order that consultation take place now. 5. It may well be that in the end, if the development consent appeal submission was to be upheld, that the public consultation process may have been wasted in a strictly technical sense. 6. I am satisfied, however, that whatever might be the outcome of the development consent point, it is sufficiently unlikely that the Company will not seek to pursue, in some alternative fashion, the possibility of an alteration to its activities at the site. In those circumstances, the availability of the public objections, although it might well require procedural rulings before they could be used in some future proceedings, will not be futile for the purposes of informing both the Company and the relevant regulators about the public's position on these matters. 7. I am also satisfied that, pursuant to s 98(1)(a) and (b) of the Civil Procedure Act, I have full power in disposing of this motion to deal with the costs of the motion itself, that is, the proceedings before me concerning the motion and, secondly, the costs of compliance with the orders that I propose to make. 8. I should observe, first, with respect to the costs of the motion, that the starting point for the motion, as I have earlier observed, was one of considerable lack of precision and the terms of a primary order was not one which I was satisfied, as I indicated to Mr Larkin, was capable of being made. There was, however, subsequently, an evolution as to the terms of such an order and also as to the powers that I might exercise in the making of such an order. 9. I am satisfied under those circumstances that I should "otherwise order" for the purposes of the costs of the motion and not adopt a "costs follow the event" position as would otherwise be presumed to apply under the Uniform Civil Procedure Rules 2005. 10. I therefore do not propose to make any costs order concerning the costs of the motion. 11. However, I am satisfied that I do also have the power to make costs orders concerning the process to be followed pursuant to the orders that I now propose to make. I propose to make orders. 12. I propose to give the parties, including using the word "parties" in a loose and social sense to give Mr Howard SC's client (Central Coast Council) the opportunity to contemplate the proposed orders (without there being any presumption that I propose to make his client a party), and I propose to provide the parties with an opportunity to make submissions about the documents I am to hand down. 13. The orders that I propose to make (but do not at this time actually make) are as follows: 1. The Environment Protection Authority (the EPA) is directed, pursuant to s 38(4) of the Land and Environment Court Act 1979, and pursuant to s 61(1) of the Civil Procedure Act 2005, to place the advertisement in Annexure A to these orders, with the EPA having inserted the necessary details of the two points required, in the Central Coast Advocate Express in three consecutive editions of that newspaper; 2. The advertisement in (1) is to be published on the first occasion no later than Thursday, 8 November 2018, the advertisement in (1) is to be a minimum quarter-page size and published within the first 13 pages of the issue within which it appears; 3. The EPA is to file and serve, within 28 days of the closing date for submissions specified in the advertisements placed pursuant to (1) a copy of all submissions made in response to the advertisement; 4. Verde Terra Proprietary Limited, the Company is to pay the EPA the cost of the advertisements in order (1) within 28 days of the provision by the EPA to the Company of receipted invoice for the advertisements; 5. In addition to the amount arising from order (4), the Company is to pay to the EPA the EPA's reasonable costs incurred in complying with these orders to a maximum of $10,000 within 28 days after the EPA invoices the Company for those costs; and 6. Leave is granted to relist the matter on three days' notice for the purposes of working out of these orders or if there is any dispute concerning the amount invoiced by the EPA pursuant to order (5). Note: At the request of the parties, the making of orders was adjourned until Thursday 18 October to permit discussions about the terms of the proposed advertisement and the publications in which it would appear. On 18 October, the parties provided agreed orders and a revised advertisement. They can be access through the following links. Revised orders - 18 Oct 18 (22.4 KB, docx) Revised agreed advertisement - 18 Oct 18 (23.6 KB, docx) ********** Annexure A Mangrove Mountain landfill - proposed extension Submissions invited Verde Terra Pty Ltd (the Company) applied to the Environment Protection Authority (EPA) to vary the Company's Environment Protection Licence for the Company's landfill/waste disposal facility at Mangrove Mountain. This would involve a 10-year extension of the operation of the facility, the disposal of more than 1.3 million tonnes of additional waste (including putrescible waste), and the placing of more than 1.3 million tonnes of excavated material (in addition to the waste to be disposed). The EPA has refused the Company's application. The Company has appealed to the Land and Environment Court against that refusal. The Company has not made an application to Central Coast Council for approval of these activities if its Environment Protection Licence is varied by the Court. The Land and Environment Court has directed that the EPA invite public submissions about the proposed extension to the Company's landfill/waste disposal operations. All submissions provided to the EPA will be made available to the Court. The application as made to the EPA is available on the EPA's website at (insert link). Submissions on the proposed variation to the Company's Environment Protection Licence may be made (Insert submission mail and email address details). The Court has also directed the Company to pay for the cost of this advertisement and of the costs of the EPA of conducting this public submission process. Endnote 1. The submission, made for the Central Coast Council (in its related application to be joined to the proceedings) that putrescible waste was to be landfilled if the EPL was varied, was subsequently withdrawn. 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: 24 October 2018