Environment Protection Authority v Floyd

Environment Protection Authority v Floyd - [2004] NSWLEC 214 - NSWLEC 2004 case summary — Zoe

[49]

The course and outcome of the civil proceedings are recorded in pars 70 to 74 of the Statement of Agreed Facts as follows: 70. In about February 2001 Blacktown City Council took proceedings in the Land and Environment Court against Misty Wilkie, the defendant and Graveyard Recycling Pty Ltd alleging the illegal use of the premises as a waste facility These were Land and Environment Court proceedings number 40255 of 2001 (Council's proceedings). EPA officers assisted Council in this action by providing eye witness and expert testimony. Initially Council sought and interim injunction to prevent the future acceptance at the premises of waste but it was initially unsuccessful. In July 201 Council did obtain an interim injunction. Before the proceedings were ultimately heard Mario Constantine was joined as a respondent. In December 2001 Her Honour Chief Justice Pearlman found against the defendant and Misty Wilkie and orders were made prohibiting the use of the premises as a tip or recycling yard and requiring the waste at the premises to be removed. Misty Wilkie later successfully appealed the orders made against her. 71. After Pearlman CJ made the orders against the defendant in December 2001, the defendant failed to comply with the orders. Eventually Council took contempt proceedings against the defendant for failure to comply with the court's orders. 72. Following the Council taking contempt proceedings against the defendant for failing to clean-up the premises as ordered by the Land and Environment Court, the Court jailed the defendant on 16 December 2002 for a period of 2 months for contempt of court. The court had previously given the defendant numerous opportunities to clean up the premises and remove the waste. In the later half of 2002, Floyd returned to the premises and made a minimal effort to comply with the court orders. He moved the waste that covered the small pile of screened soil and a couple of truck loads of waste were removed from the premises. 73. On 1 May 2003 council initiated further contempt proceedings against the defendant as after his release from jail he had continued to fail to comply with the original court orders. Pearlman CJ found that the original court orders continued to apply and that the defendant was again in contempt of court for failing to comply with the orders. Her Honour sentenced the defendant to imprisonment for a further period of 6 months but suspended that sentence on the basis that the defendant Floyd remove 50 tonnes of waste per month from the premises see Blacktown City Council v Reid [2003] NSWLEC 120. 74. For about the last year the defendant has complied with the orders of Pearlman CJ and is removing waste at the rate of 50 tonnes per month under the supervision of Blacktown City Council.

[57]

In the course of her reasons for judgment, Pearlman CJ considered the interplay between the EP&A Act and the PEO Act in respect of the illegal use made by the Defendant and the Company of the premises and in respect of the legitimacy of any mandatory relief to remedy the breach of the EP&A Act. The relevant passages which are at pars 67 to 70 inclusive, bear repetition in the present context: 67. The second matter to consider is the submission made by Ms Byrne that no order requiring the removal of the waste material should be made because, firstly, the jurisdiction to regulate that removal rests solely in the EPA and not the council, and, secondly, that, since the council is not in a position to enforce such an order, that would lead to uncertainty in the order itself. As I understood this submission, it proceeded on the following basis. The deposit of the waste material on the site constitutes a scheduled activity under par (1)(d) of the definition of "waste facilities" in sch 1 of the Protection of the Environment Operations Act 1997 ("the POEO Act"). Accordingly, a licence was required to deposit the waste material and, pursuant to s 6(1) of the POEO Act, the EPA is the appropriate regulatory authority. That regime was recognised by the EPA in the clean up notice dated 9 May 2001 which it served upon the second and third respondents. Ms Byrne submitted that, therefore, it is for the EPA to regulate the removal of the waste material, and the council lacks any power to do so. Furthermore, the removal of the waste material on the site requires its transfer, in respect of which, once again, the EPA is the regulatory authority. Therefore, an order of the Court requiring the removal of the waste material would be inherently uncertain, since the EPA's involvement is required, and an order casting an obligation on a party to proceedings which is uncertain in its terms is to be avoided, having regard to the serious consequences of any failure to comply with such an order. 68. I reject this submission. In my opinion, it is misconceived. These proceedings are brought by the council under s 123 of the EP&A Act, which confers upon any person an entitlement to bring proceedings for an order to remedy or restrain a breach of that Act. The breach which I have found to be established is a breach of s 76A(1) of the EP&A Act (that is, carrying out development without having obtained the requisite development consent). The POEO Act deals with another regime altogether, in that it provides for the control and regulation of certain scheduled activities. It does not operate to control or regulate the requirements under the EP&A Act for the proper management and development of land. The two regimes are complementary. So much is recognised by s 50(2) of the POEO Act which provides that a licence in respect of development that cannot be carried out without development consent must not be granted unless development consent has been obtained. 69. Under s 124 of the EP&A Act, the Court has a wide discretion, where it is satisfied that a breach of the EP&A Act has been committed, to make such order as it thinks fit to remedy or restrain the breach. The discretion enables the Court to frame orders in the light of all the factors falling within the purview of the dispute (F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306 at 313). Accordingly, the Court is empowered in its discretion to make an order requiring the remedying of the breach by the removal of the waste material.
Nor is there anything inherently uncertain in such an order. The order which the council seeks requires the removal of the waste material to a licensed waste facility. Compliance with such an order will not constitute a breach of s 143 of the POEO Act, nor does it require a licence under the POEO Act. Such an order is clear in its terms, and would not leave the parties obliged by it in any doubt as to what was required to comply with it.

[60]

A few months after serving that sentence of imprisonment, the Defendant was charged by the Council with ongoing contempt. Having found the Defendant guilty, Pearlman CJ said the following at pars 27 and 28: 27 In accordance with the foregoing, I have concluded that I should commit the second respondent to prison for a period of six months, but that I should suspend that sentence for a period of six months, upon the terms sought by the council except as to the amount of waste to be removed each month, which should be fixed at 50 tonnes instead of 500 tonnes. 28 My formal orders are as follows: (1) I find the second respondent guilty of contempt of this Court for continuing to disobey order 5 made by this Court in these proceedings on 6 December 2001 in that the second respondent has failed as at 7 February 2003 to complete the removal from the land known as part lot 2 in DP 781151 on the corner of Grange Avenue and Richmond Road, Marsden Park ("the site") the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste situated on the site ("the waste") and the transfer of the waste to a licensed waste management facility in accordance with order 5. (2) I punish the second respondent, Mark Reid (also known as Craig Floyd) by committal to prison for a period of six months. (3) I suspend order 2 pursuant to Part 55 rule 13(3) of the Supreme Court Rules 1970 for a period of six months on the following terms: (a) The second respondent remove from the site a minimum of 50 tonnes of the waste per calendar month; (b) The second respondent give at least four business hours' (ie four hours between 9 am and 5 pm Monday to Friday excluding public holidays) prior notice to an officer of the applicant nominated by the applicant to the second respondent care of Dennis & Co, solicitors ("the nominated officer") on a telephone number nominated by the applicant to the second respondent care of Dennis & Co, solicitors, of the removal of any of the waste from the site so that the nominated officer can attend the site and personally sight the waste being removed. (c) The second respondent and the nominated officer shall each write on the same document at the site, at the time of removal of each load of waste from the site, the date and time of each load of waste taken from the site, their respective estimates of the amount of waste by tonne of waste removed in each load, and the basis upon which such estimate has been made. The nominated officer shall retain the original document and bring it to the site each time the second respondent has given prior notice in accordance with paragraph (b) of these terms and shall provide a photocopy of the document to the second respondent care of Dennis & Co, solicitors, within 48 hours of each specified load of waste removed from the site. (d) Only waste recorded as removed from the site on the document referred to in paragraph (c) of these terms shall be included in the calculation of 50 tonnes referred to in paragraph (a) of these terms. (4) I order the second respondent to pay the costs of the applicant relating to the notice of motion for contempt to which this judgment relates, such costs to be as agreed or as assessed. (5) I grant liberty to either party to apply on three days' notice.

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Judgment (127 paragraphs)

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Cases Cited (12)

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