Environment Protection Authority v Leaway Pty Limited

Environment Protection Authority v Leaway Pty Limited - [2006] NSWLEC 44 - NSWLEC 2006 case summary — Zoe

[10]

JUDGMENT 1 HIS HONOUR: The applicant, the Environment Protection Authority, ("EPA"), has brought civil enforcement proceedings in Class 4 of the Court's jurisdiction to remedy and restrain breaches of the Protection of the Environment Operations Act 1997 ("the Act") and the Protection of the Environment Operations (Waste) Regulation 1996 ( "the Regulation"). 2 The breaches concern obligations of the respondent, Leaway Pty Limited, as occupier of a licensed waste facility under an environment protection licence and under the Act and the Regulation, to prepare and provide to the applicant certain information and records in relation to the receipt and disposal of waste at the facility and to pay contributions and interest in respect of waste received and disposed of at the facility. The Applicant's Claim 3 The applicant commenced the proceedings on 6 July 2005 by an application class 4, being the appropriate originating process for this type of proceeding. The applicant claimed relief seeking, amongst other relief: "1. A declaration that the Respondent, being the holder of Environment Protection Licence No. 11508 [later corrected to 11680] ("the licence") under the Protection of the Environment Operations Act 1997 ("the Act") for premises at Main Road, 220 North Rothbury, NSW ("the premises"), as the occupier of a licensed waste facility, has been at all times since 1 October 2002 liable in accordance with s 88 of the Act and the Protection of the Environment Operations (Waste) Regulation ("the Regulation") to pay such contribution as is prescribed in the Regulation in respect of all waste received and disposed of at the facility. 2. An order that the Respondent pay to the Applicant the sum of $47,418.53, being the amount owed by the Respondent to the Applicant pursuant to section 88 of the Act with respect to the last quarter of 2002 and the first quarter of 2003. 3. An order that the Respondent pay to the Applicant interest on the sum payable pursuant to order 2 from 28 May 2004 calculated in accordance with clause 19 of the Regulation...".

[15]

10 On 26 August 2005, the applicant provided to the respondent's solicitor the applicant's categories of discovery. 11 On 31 August 2005, the applicant filed in court and served on the respondent's solicitor the applicant's points of claim. Of relevance to the claims by the applicant that the respondent is liable to pay contributions and interest (prayers for relief 1 to 3 of the amended application Class 4) are the following parts of the pleading: "3. On or about 10 May 2002, the Respondent applied for a licence under section 55 of the Protection of the Environment Operations Act 1997 ("the PEOA Act") to operate a waste facility at Main Road 220, North Rothbury, NSW ("the Premises"). 4. On or about 30 August 2002, the Applicant issued the Respondent with Environmental Protection Licence No. 11680 ("the Licence") under section 55 of the POEO Act in respect of the premises. 5. The Respondent has operated a waste facility at the Premises since about 30 August 2002 ("the Facility"). 6. Section 88 of the POEO Act provides that the occupier of each licensed waste facility (except those used solely for reusing, recycling or reprocessing waste) is liable to pay contributions as prescribed by the regulations, at such intervals and in such manner as the Applicant directs in writing. 7. The Facility at the Premises has not, at any material time, been used solely for reusing, recycling or reprocessing waste. 8. On or about 17 December 2003, the Applicant sent the Respondent a notice ("the Notice") under section 88 of the POEO Act, which required the Respondent to pay the contribution for the reported quantity of waste at the rate set by the Protection of the Environment Operations (Waste) Regulation 1996 ("Waste Regulation") by 60 days after the end of each calendar month. 9. In the premises, the Respondent was obliged to pay the contributions prescribed by the Waste Regulation in relation to all waste received and disposed of at the Facility. 23. In light of the information provided by the Respondent in relation to the two quarters from 1 October 2002 to 31 March 2003, the Respondent was required to pay the sum of $47,418.53 as contribution pursuant to section 88 of the Act with respect of those quarters. 24. The Applicant has sought payment from the Respondent of the amount referred to in the preceding paragraph. Particulars Payment was sought by letters of 21 May 2004 and 16 May 2005. 25. The Respondent has: a. failed to pay the amount sought by the Applicant as referred to in the preceding two paragraphs; b. failed to pay any amount by way of contribution under s 88 of the POEO Act in relation to the Facility in respect of the period 1 October 2002 to 31 March 2003. 27. The Respondent has not paid any interest on the contributions owing in relation to the Facility. 29. In the premises the Applicant seeks: a. the orders set out in the Amended Application dated 7 July 2005; b. interest on the amount/s referred to at para 6 of the Amended Application, calculated in accordance with clause 19 of the Waste Regulation or, in the alternative, with NSW Supreme Court Rates".

[20]

28 The notice of motion was served on the respondent. 29 On 7 December 2005, the proceedings came before the Registrar of the Court. Amongst other orders, the Registrar directed that the Registry write to the respondent and advise that the matter had been listed today and was stood over to 15 December 2005 before a judge for the hearing of the notice of motion dated 29 November 2005 and filed on 30 November 2005. 30 The applicant sent a letter to the respondent on 7 December 2005 advising of the order of the Registrar that the notice of motion had been stood over to 15 December 2005. 31 A letter was also sent by the Registry to the respondent but unfortunately there was a misstatement of the date to which the proceedings had been adjourned. It was stated to be 16 December, rather than 15 December as the Registrar had ordered. 32 On 14 December 2005, Ms Mahony, another solicitor for the applicant, had a telephone conversation with Mr Wayne Paddison. Mr Paddison is a principal with the respondent. Ms Mahony informed Mr Paddison that she was a solicitor with the applicant. Ms Mahony asked Mr Paddison whether he had a solicitor or person who is representing the respondent in the matter. Ms Mahony informed Mr Paddison that she had sent a letter to the registered office of the respondent about the current court proceedings and enquired whether someone was going to appear in the Court. 33 Mr Paddison informed Ms Mahony that she should speak to a Mr Dane Linde, a solicitor at Brooks & Co, and that he would be looking after the matter. Brooks & Co is the firm of solicitors who had earlier filed a notice of appearance for the respondent and had appeared in the matter. Ms Mahony said to Mr Paddison that the applicant had received a notice from Brooks & Co that they were no longer acting for the respondent. Nevertheless, Mr Paddison said that that firm was the firm that would be looking after the matter and that Ms Mahony should give Mr Linde at that firm a call. 34 Ms Mahony subsequently did call that firm of solicitors. However, she was not able to speak to Mr Linde at that time. 35 On 15 December 2005, the proceedings came before me as duty judge. Mr Kirk appeared for the applicant. There was no appearance for the respondent. The proceedings were adjourned to 16 December 2005 as a result of the misstatement in the letter sent by the registry advising that the return date was 16 December 2005. 36 Later that day, Ms Mahony received a telephone call from Mr Linde from Brooks & Co. Ms Mahony informed Mr Linde that she had spoken to Mr Paddison and that he had told her that Brooks & Co were acting for the respondent again. Mr Linde said that the circumstances of Brooks & Co acting for the respondent were "complicated" but requested nevertheless that a copy of the applicant's motion be faxed to him so that he could look at it and advise Mr Wayne Paddison about it. Ms Mahony promised to do so. Subsequently, Ms Mahony sent the documents to Mr Linde as requested. 37 On 16 December 2005, when the matter came before me there was still no appearance for the respondent. Mr Kirk appeared for the applicant. The applicant, although initially pursuing its notice of motion, subsequently sought that certain of the issues, namely, the issues concerning prayers for relief 1 to 5 in the amended application class 4, be heard as separate issues. I made the following orders: "1. Pursuant to Pr 6 r 1 of the Land and Environment Court Rules 1996 adopting Part 31 of the Supreme Court Rules 1970, the questions in relation to prayers for relief 1 to 5 inclusive in the amended Class 4 Application filed on 3 August 2005 are to be determined separately from any other questions in the proceedings. 2. The Applicant is granted liberty to approach the Registry forthwith to have those questions separately decided at a hearing in the first week of February 2006. 3. The Applicant is to advise the Respondent of the orders made today by the Court by 23 December 2005. 4. The Applicant's Notice of Motion dated 29 November 2005 is stood over to the first day of hearing of the separate questions. 5. The Applicant is to advise the Respondent of the affidavit evidence upon which it will seek to rely at the hearing, and of any documents upon which it will seek to rely by 23 December 2005. 6. The parties are given liberty to restore the matter to the Court on 48 hours notice to the other Party. 7. The question of costs in relation to the Notice of Motion dated 29 November 2005 is reserved. 38 Pursuant to order 2, the Registrar fixed 1 February 2006 as the date for hearing of the separate questions. 39 The orders were sent to the parties by the Registry. 40 On 19 December 2005, pursuant to order 5 of the Court orders of 16 December 2005, the applicant wrote to the respondent and to Brooks & Co advising of the orders made by the Court on 16 December 2005 and enclosing various documents. 41 On 9 January 2006, the applicant sought further orders in the nature of a Mareva injunction. Mr Gye of counsel appeared for the applicant. There was no appearance for the respondent. Pain J made the following orders: 1. The Respondent, by itself, its servants or agents, together with any business enterprise, company or companies controlled by the Respondent, be restrained until further order from disposing of, diminishing the value of, encumbering or otherwise dealing in any way with its assets up to $232,350.80 including any money, property or any other item of value irrespective of whether those assets are: (a) in the Respondent's own name or not; (b) solely or jointly owned by the Respondent; or (c) located within or outside the jurisdiction. 2. The Respondent, by itself, its servants or agents, together with any business, enterprise, company or companies controlled by the Respondent, be restrained from transferring any assets located within the jurisdiction outside of the jurisdiction, except with leave of this Court. 3. Order 1 will cease to have effect if the Respondent:

[57]

80 Form WISQTR.1 provides that the respondent must submit monthly reports if a s 88 contribution is required to be paid and waste is generated and received in the extended regulatory area. For the reasons I have given above, a s 88 contribution is payable by the respondent and the waste is generated and received in the extended regulated area. Accordingly, the respondent is required to submit monthly reports. 81 Regulation 23 of the Regulation provides: "(1) The occupier of a scheduled waste facility who is required to pay contributions under section 88 of the Act must accurately record the following details in respect of each vehicle (other than a motor car or a car trailer) that transports waste to or from the waste facility: (a) the registration number of the vehicle, (b) the time and date of entry to the waste facility, (c) the time and date of exit from the waste facility, (d) the type of waste carried by the vehicle, (e) the quantity (in tonnes) of each type of waste carried by the vehicle, (f) the final destination (whether at that waste facility or otherwise) of the waste. (2) The occupier of a scheduled waste facility who is required to pay contributions under section 88 of the Act must accurately record, on a daily basis, the following details in respect of the motor cars or car trailers that transport waste to the waste facility: (a) the total number of motor cars and car trailers that, on each particular day, transport waste to the waste facility, (b) the type of waste transported by each such motor car or car trailer". 82 Regulation 23A of the Regulation provides: "The occupier of a scheduled waste facility who is required to pay contributions under section 88 of the Act must provide the EPA with the following information in such manner and at such times as is required by the EPA: (a) the quantity of waste received at the waste facility over any specified period, (b) the types of waste received at the waste facility over that period, (c) such other information as may be specified by the EPA".

[61]

84 The applicant has sought the information and documents required by the licence, the form and the Regulation but the respondent has not provided them. 85 The applicant now seeks, in prayers for relief 4 and 5 of the amended application class 4, orders of the Court that the respondent provide the information and documents to the applicant. 86 The failure of the respondent to provide the information and documents constitutes a breach of the Act and the Regulation, capable of being remedied by an order of the Court under s 252(6) of the Act. 87 Moreover, the Court can make orders requiring the respondent to provide discovery. The material sought by the applicant is necessary for the applicant to be able to calculate or to confirm the calculation of the contribution payable in relation to the period after 31 March 2003, for which no reports have been lodged by the respondent. Enabling such calculation and confirmation is clearly one of the main purposes of the various duties under the licence, Act and Regulation. 88 Provision of this information can be seen as a form of discovery, given the applicant's need for the information for the purposes of this case. Indeed, discovery in much these terms was sought by the applicant but never provided by the respondent. 89 Turning to deal particularly with each of the categories of orders sought in prayer for relief 4, I make the following findings. 90 Prayer for relief 4(a) is based on licence condition R7. The respondent is obliged to comply with all conditions of licence. A failure to comply with a condition of licence is a breach of the Act. An order under s 252(6) of the Act can remedy that breach. 91 In relation to para (4)(b), the respondent, as occupier of a scheduled waste facility, is required under reg 23A to provide the applicant with the information stated in that regulation in such manner and at such times as specified by the applicant. The specification of the manner and times was made by the applicant in the notice sent to the respondent on 17 December 2003 to which I have referred above. That notice required the respondent to provide monthly reports on the WCMR form. The respondent has failed to provide the reports. That failure constitutes a breach of the Regulation and the Act. An order under s 252(6) of the Act is appropriate to remedy that breach. 92 In relation to para (4)(c), the respondent, as occupier of a scheduled landfill site, is required pursuant to reg 24 to cause a volumetric survey to be undertaken in June and December of each year. 93 The applicant specifically reminded the respondent, in December 2003 and June 2004, of the obligation to undertake and provide such surveys. The respondent admitted in its defence that it has not supplied a copy of any such survey: para 11 of the defence. The failure of the respondent to undertake and provide volumetric surveys is a breach of the Regulation and the Act, again capable of being remedied by an order under s 252(6) of the Act. 94 In relation to para (4)(d), pursuant to condition 57 of the development consent granted to the respondent, the respondent was required to obtain and retain weighbridge tickets for waste being received at the premises. Although that development consent is not an approval under the Act, rather it is one under the Environment Planning and Assessment Act 1979, the weighbridge tickets would be of utility to the applicant in calculating how much waste has been received at the premises. The information is therefore information that is appropriate to be the subject of an order for discovery by the respondent. The respondent has failed to provide the information to the applicant. It is appropriate that the Court order that the respondent, by way of discovery, provide the weighbridge tickets for waste received at the premises to the applicant. 95 In relation to para (4)(e), the respondent, as occupier of a scheduled waste facility, is required pursuant to reg 23 to record certain details in respect of each vehicle that transports waste to or from the facility including the type and quantity of waste carried. This information would be of utility to the applicant. The respondent has failed to provide the information to the applicant. The failure of the respondent to provide the information is a breach of the Regulation and the Act and is capable of being remedied by an order under s 252(6) of the Act. 96 The above discussion deals with the information and documents that are currently in existence and held by the respondent but not produced to the applicant. However, the applicant also seeks orders that the respondent prepare (bring into existence) information and documents that it was required to prepare. The failure of the respondent to prepare and provide to the applicant such information and documents constitutes a breach of the Regulation and the Act and the Court may remedy that breach by ordering the respondent to prepare the documents and, upon being prepared, provide them to the applicant. 97 The two classes of documents that are of relevance here are the waste contributions monthly reports and the volumetric survey. 98 The respondent was required by Condition R7 of the licence, Form WISQTR.1 and the applicant's notice of 17 December 2003 to prepare waste contributions monthly reports. The respondent should be required to prepare the waste contributions monthly reports for each of the months for which waste has been received at the premises and in respect of which a monthly report has not already been prepared. 99 Furthermore, the respondent was required by reg 24(1)of the Regulation to prepare during December 2005 a volumetric survey and to provide the results of such survey to the applicant in the approved form and manner by no later than 31 January of this year. That was yesterday. The respondent has not provided to the applicant a volumetric survey carried out during December of 2005. There is therefore a breach of the Regulation and of the Act. An order under s 252(6) to carry out now a volumetric survey, although a month late, nevertheless is an order that remedies the breach of the Regulation by the respondent of not carrying out the volumetric survey during December 2005 and providing the results of that survey to the applicant by 31 January 2006. 100 Accordingly, it is appropriate that the Court also make orders that the respondent prepares and provides to the applicant waste contributions monthly reports for any period for which reports have not been provided, namely, a report for the period 30 August 2002 up to 30 June 2003 (a period of ten months) and individual monthly waste contribution monthly reports for each month thereafter up until 31 December 2005. Furthermore, it is appropriate that the Court order that the respondent cause a volumetric survey to be undertaken of the land filling areas of the premises and provide the results of the survey to the applicant.

[62]

101 For these reasons, the Court makes the following declarations and orders: 1. A declaration that the Respondent, being the holder of Environment Protection Licence No 11680 ("the licence") under the Protection of the Environment Operations Act 1997 ("the Act") for premises at Main Road 220 North Rothbury, New South Wales ("the premises"), as the occupier of a licensed waste facility has been at all times since 1 October 2002 liable in accordance with s 88 of the Act and the Protection of the Environment Operations (Waste) Regulation 1996 ("the Regulation") to pay such contribution as is prescribed in the regulation in respect of all waste received and disposed of at the facility. 2. An order that the Respondent pay to the Applicant forthwith the sum of $47,418.53, being the amount owed by the respondent to the applicant pursuant to s 88 of the Act with respect to the last quarter of 2002 and the first quarter of 2003. 3. An order that the respondent pay to the applicant forthwith interest on the sum payable pursuant to paragraph (2) from 28 May 2004 in the sum of $194,415.97. 4. An order that by 1 March 2006 the Respondent provide to the applicant copies of the following documents and/or records, with weights expressed in tonnes, in respect of the premises: (a) Copies of any and all draft or completed EPA waste data forms (the form known as WISQTR.1 or the Quarterly Report for Scheduled Waste Activities), as referred to in Condition R7 of the licence, insofar as these exist. (b) Copies of any and all draft or completed Waste Contributions Monthly Reports (WCMRs) as referred to in the letter and notice sent to the respondent by the applicant and dated 17 December 2003, insofar as these exist. (c) A copy of the results of any volumetric survey undertaken of the premises as required by cl 24 of the Regulation. (d) Weighbridge records and/or data from the Wickham weighbridge facility and all other weighbridge facilities that have recorded the weight of waste for disposal at the premises from 1 October 2002 to the date of this order. (e) Records of vehicle movements from 1 October 2002 to the date of this order recorded and kept in accordance with the requirements of cl 23 of the Regulation: (i) the registration number of each vehicle;

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Judgment (70 paragraphs)

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