Eveston v Environment Protection Authority - [2021] NSWLEC 54 - NSWLEC 2021 case summary — Zoe

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Eveston v Environment Protection Authority

[2021] NSWLEC 54

Land and Environment Court (NSW)|2021-03-31|Before: Moore J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2021-03-31

Before

Moore J

Catchwords

[2007] NSWCA 38 Mosman Municipal Council v Kelly (No 3) (2009) 167 LGERA 91
Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177

Source

Original judgment source is linked above.

Catchwords

[2007] NSWCA 38 Mosman Municipal Council v Kelly (No 3) (2009) 167 LGERA 91Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177

Judgment (38 paragraphs)

[1]

Introduction

Mr Eveston, the Applicant in each of the Class 1 proceedings giving rise to the two Notices of Motion with which I need to deal in this decision, had held development consent to operate a resource recovery and waste storage facility on a property at Goulburn (the Goulburn site). He had also held an Environment Protection Licence (EPL) granted by the Environment Protection Authority (the EPA) imposing conditions on the operation of the facility on the Goulburn site.
On 28 January 2018, Goulburn Mulwaree Council (the Council) advised the EPA that the Council considered that Mr Eveston did not hold a current development consent for his activities on the Goulburn site. As the holding of development consent for the operation of such a facility was a necessary prerequisite to the continued holding of the EPL for the facility on the Goulburn site, the EPA revoked Mr Eveston's EPL on 26 April 2018.
As will later be explained in more detail, when the EPA revokes an EPL, it may attach conditions to that revocation. It did so when it revoked Mr Eveston's EPL. For present, it is sufficient to note that one of the conditions attached to that revocation of Mr Eveston's EPL by the EPA was the requirement that Mr Eveston eventually completely remove the 6,860 cubic metres of waste which remained on the Goulburn site at the time of the EPL's revocation.
It is also appropriate to note, in passing, that Mr Eveston does not own the Goulburn site where he had operated his facility. The site was and is owned by a corporate entity which has Mr Eveston's father as its guiding mind.

[4]

The POEO Act provisions

Three provisions of the POEO Act require consideration. These are: 65 Part not exclusive This Part contains examples of conditions that can be attached to a licence. Accordingly, nothing in this Part prevents other conditions being attached to a licence. 79 Suspension or revocation of licence by appropriate regulatory authority (1) The appropriate regulatory authority may suspend or revoke a licence during its currency. (2) A suspension or revocation of a licence is effected by notice in writing given to the holder of the licence. (3) A suspension may be for a specified period, or until the fulfilment of specified conditions, or until further order of the appropriate regulatory authority. (3A) A licence may be revoked during the currency of a suspension. (4) The appropriate regulatory authority is not required to give the holder of a licence notice of the authority's intention to suspend or revoke the licence (whether with or without conditions imposed under section 81) before giving a notice under subsection (2). (5) The reasons for suspending or revoking a licence may include (but are not limited to) the following - (a) the holder of the licence has obtained the licence improperly, (b) a condition of the licence has been contravened, (c) the scheduled development work to which the licence relates has not been commenced or completed and the appropriate regulatory authority is of the opinion that it is no longer appropriate that the work be carried out or completed, (d) the activities covered by the licence are completed or no longer being carried on, (e) the holder has failed to pay the annual licence fee by the due date for its payment, (e1) the holder is liable to pay a contribution in respect of waste under section 88 and has failed to pay the contribution by the due date for its payment, (f) in the opinion of the appropriate regulatory authority, the holder of the licence is no longer a fit and proper person. (6) No fees are refundable on the suspension or revocation of a licence. 81 Conditions of suspension, revocation or surrender (1) A licence may be suspended or revoked, or the surrender of a licence may be approved, unconditionally or subject to such conditions as the appropriate regulatory authority imposes. (2) Those conditions may include (but are not limited to) any conditions to which the licence was subject immediately before it was suspended, revoked or surrendered. (3) The appropriate regulatory authority may, by notice in writing given to the former holder of the licence, attach new conditions to, or vary or revoke any existing conditions of, the suspension, revocation or surrender of the licence. 287 Appeals regarding licence applications and licences (1) Any person - (a) who makes a licence application and who is aggrieved by any decision of the appropriate regulatory authority with respect to the application, or (b) who is or was the holder of a licence and who is aggrieved by any decision of the appropriate regulatory authority with respect to the licence, may, within 21 days (or such other period as is prescribed instead by the regulations) after being given notice of the decision of that authority, appeal to the Land and Environment Court against the decision. (1A) The lodging of an appeal - (a) in the case of an appeal against a decision to suspend or revoke a licence (whether with or without conditions) - does not operate to stay the decision appealed against, and (b) in the case of an appeal against any other decision - does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay the decision appealed against. (1B) For the avoidance of doubt, the Land and Environment Court has no jurisdiction to make an order staying a decision referred to in subsection (1A) (a). (2) An appeal under this section extends to a decision to refuse the licence application, to impose conditions on the issue of a licence, to vary the conditions of a licence, to revoke or suspend a licence, to refuse to approve the surrender of a licence, to impose conditions on a revocation, suspension or surrender of a licence or to attach any new conditions to, or to vary any conditions of, a suspension, revocation or surrender of a licence. (3) For the purposes of this section, a licence application is taken to have been refused - (a) in the case of an application for a variation of a licence about which the appropriate regulatory authority is required to invite and consider public submissions under section 58 (6), if the application is not granted within 90 days after it is duly made, or (b) in the case of an application for a licence relating to controlled development, if the application is not granted within 60 days after it is duly made or within 30 days after development consent is granted for the controlled development, whichever is the later, or (c) in any other case, if the application is not granted within 60 days after it is duly made. (4) The period commencing when an Applicant is duly required under this Act to provide additional information within a specified period for the purposes of determining a licence application and ending when that information is provided or the specified period ends (whichever occurs first) is not to be taken into account in determining whether a licence application is taken to have been refused. (5) Nothing in this section prevents the determination of a licence application under this Act after the end of a period referred to in subsection (3). (6) There is no appeal under this section against a condition that is imposed on a licence, or varied or revoked, by the regulations.

[10]

The 2020 surety release Class 1 proceedings

On 8 September 2020, Mr Eveston's legal representatives wrote to the EPA enclosing a request from Mr Eveston seeking further variation to the conditions which the EPA had attached to his EPL at the time of its revocation. This request was made with respect to conditions which had not been modified by the orders made as the outcome of the conciliation conference proceedings finalised in February 2019 described above.
Before describing Mr Eveston's request, it is appropriate to note that Mr Eveston had been required to provide to the EPA (and had provided) a financial surety of $250,000, a surety designed to ensure that the 6,860 cubic metres of waste on the Goulburn site were removed to a landfill authorised to receive them. Release of the surety was, in the revocation conditions adopted by agreement through the conciliation process, to be in accordance with the timetable in revocation condition 3(d) set out below: All conditions of Environment Protection Licence 20036 (Attachment 1) must continue to be complied with, except for: a. … b. … c. … d. EPL 20036 conditions E1 to E3. Insertion of new condition E1.2A concerning financial assurance, as follows: E1.2A i. When there is no more than 5112 m3 of waste on the Premises, the amount of financial assurance required by condition E1.1 is reduced from $250,000 to $200,000; ii. when there is no more than 3834m3 of waste on the Premises, the amount of financial assurance required by condition E1.1 is reduced to $150,000; iii. when there is no more than 1917m3 of waste on the Premises, the amount of financial assurance required by condition E1.1 is reduced to $75,000; iv. When there is no waste on the Premises, the amount of financial assurance required by condition E1.1 is reduced to $0.
A timetable for removal of the waste from the Goulburn site was also set by conditions 5 and 6 of the revocation conditions. These conditions are in the following terms: Removal and disposal of waste required 5. All waste at the Premises, including the two waste stockpiles identified in the PHL Surveyor's report of 19 November 2018 as Pile 1 & Pile 2 (Attachment 2), must be removed from the Premises by no later than 5pm on 21 September 2019, being 9 months from the date of issue of this Notice. 6 There must be no more than 3,195m3 of waste on the Premises by 21 May 2019.
Mr Eveston's proposal to the EPA sought to enable him to access, in a regulated and protected fashion, the $250,000 surety for the purposes of removal of portion of the waste from the site. He made this request because of his inability otherwise to finance any of the removal of waste from the common Goulburn site. In this context, it will later be necessary to set out evidence concerning Mr Eveston's financial position.
By letter dated 19 October 2020 to Mr Eveston's legal representatives, the EPA indicated:

it did not consider that Mr Eveston had any available avenue which would permit him to make a legally effective application in the nature of the request which had been proposed by him in his letter of 8 September 2020; and
the EPA did not propose to agree to the request which he had made for the staged release of the surety to permit him to utilise the money to effect the clean-up of the waste on the Goulburn site.

On 9 November 2020, Mr Eveston's legal representatives filed a Class 1 appeal against the refusal by the EPA to accede to what was said to be Mr Eveston's "application" pursuant to s 287(1)(b) of the POEO Act to vary further the revocation conditions attached to the EPL - this "application" being for the controlled release of his $250,000 surety for the purpose of funding removal of the waste on the Goulburn site.

[23]

Mr Eveston's prospects of an improved financial position

In her affidavit of 15 February 2021, Ms Menyhart gives evidence of a conversation which she had with Mr Eveston concerning his financial position and possible improvement in it. The conversation took place on that day. The relevant paragraph recounting the conversation is in the following terms: 4 On 15 of February 2021 I had a discussion with Mr Eveston to the following effect: I said: Hi Chris. I have received your updated bank statement, thank you. Is this still your only bank account? Mr Eveston said: Yeah, it is. I said: Are you still looking at options to dispose of the waste? Mr Eveston said: Yes, mum and I are still in contact with Veolia and I spoke to a guy at Hi-Quality the other day. I am still trying. I might also have found a new place which may be able to take it - down in Gundagai - although they would need to vary their EPL. Quandialla isn't really on the cards because the waste has plastics in it and they can't take it. I said: Do you have any money you can use to get rid of the waste? Mr Eveston said: No - I am still on COVID payment, but I don't think I will be eligible for much longer. I don't have any money I can use to pay for the removal of the waste from Goulburn. I said: Have you looked at whether you could get a grant or something to help pay to clean up the waste? Mr Eveston said: I have looked at a couple of grants online. The EPA has one called "working together", and there was another one called "waste less, recycle more" which seemed to have a few different options. I read through the grant information on the website, but don't meet the criteria for either grant. They seem to be directed to councils or new facilities. I would love to get money from the government to help clean up the site, but I don't think I meet the criteria for any of them to be honest. I said: That's a shame. Mr Eveston said: My dad is also a director of a company called Northern Park Pastoral. I am currently trying to help him line up a business deal with another company. If the deal gets through, then I will be entitled to a get a cut from the deal - a finders fee if you like. I said: That would be great, let me know what happens. Mr Eveston said: If I get that money, I'll use the two trucks to remove the waste from Goulburn - if someone will take it.

[26]

The submissions for Mr Eveston

Ms Novak noted that this Class 1 appeal was brought by Mr Eveston seeking to have a decision of the EPA reviewed. She noted that the Class 1 proceedings had been commenced within the required 21 days from the date of the EPA's determination.
Although Ms Novak conceded that there was no "express" statutory avenue for a second appeal against the revocation of Mr Eveston's EPL, she submitted that the Court did have jurisdiction to hear this Class 1 appeal by virtue of the combined operation of s 287(1)(b) of the POEO Act and s 17(a) of the Court Act.
The decision was the refusal by the EPA of Mr Eveston's application sent to the EPA on 8 September 2020 by his legal representatives seeking to amend further the revocation conditions dated 26 April 2018 in the form now attaching to the Notice of Revocation of Mr Eveston's EPL for the Goulburn site.
The POEO Act, by s 287, gives jurisdiction for this appeal to the Court. This is the relevant provision as it is the one that allows appeals against decisions of the EPA as the decision-making body concerning EPLs.
She submitted that the scope of the appeal right was broad because the Court has jurisdiction to hear any appeal relating to an EPL made by the EPA (s 287(1)). Mr Eveston specifically relies upon subs 287(1)(b) which applies to any person "who is or was the holder of a licence and who is aggrieved by any decision of the appropriate regulatory authority with respect to the licence" (emphasis added).
It would be inconsistent with the legislative scheme if a person who has had their licence revoked can be held liable for a breach of conditions imposed by a Notice of Revocation if that person cannot seek to amend such conditions because circumstances may change after the revocation.
The EPA had made a decision to refuse Mr Eveston's application to amend the revocation conditions. This was evidenced by the EPA's letter to Mr Eveston's legal representatives dated 19 October 2020 and titled "Request to amend Notice of Revocation of Licence 1557623". The relevant elements of this letter said to evidence an appealable decision being made by the EPA were: … the EPA has nevertheless considered the request; Although it is not required to do so, the EPA has also taken into account the factors in s 45 of the POEO Act in considering the request; After careful consideration, the EPA advises that it will not make the requested amendments to the Notice of Revocation. The EPA's reasons are set out below.
Due to the "character of finality" of the terms of the letter, this identified the contents of the EPA's letter of 19 October 2020 as a decision to which s 287 of the POEO Act applies.
The operative words in s 287 of "any decision" gives additional "flexibility" to the relationship between the decision and the licence. The phrase "any decision" should be construed in broad terms that would encompass the contents of the EPA's letter of 19 October 2020 as being one conveying a decision by the EPA.
The EPA has the power "to attach new conditions to or vary or revoke any existing conditions of a revocation of a licence" (s 81 of the POEO Act). This is one factor that contributes support to the proposition that Mr Eveston's request was an application with respect to which the EPA made a decision.
Ms Novak cited Murphyores Incorporated Pty Limited v Commonwealth of Australia [1976] 136 CLR 1 (Murphyores) as supporting this submission. In doing so, she relied on Mason J's judgment where, on pages 17 and 18, his Honour explained why the Minister had a duty to consider and make a decision on any application even though there was no express statutory provision granting the power to make such an application.
Applying that proposition to the present circumstances, she submitted that there must be an implied statutory power to permit Mr Eveston make a further application as he had done.
She submitted (Transcript 31 March 2021, page 10, lines 11 to 18): So, contrary to the position of the EPA there is an implied statutory entitlement to make an application and that would be entirely consistent with the statutory regime which has an overarching objective of protecting the environment. The environment is not static. Decisions need to be made having regard to changed factual circumstances. So it is entirely consistent with that regime that an application would be made and could be made to vary the conditions of a Notice of Revocation to deal with changed factual circumstances on the ground.
The relational nexus between the EPA's refusal decision and the revoked EPL was the relevant factor that allowed s 287 to be invoked as the basis for this Class 1 appeal.
Ms Novak referred to the reasoning of Hodgson JA in Kindimindi Investments Pty Limited v Lane Cove Council & Anor (2007) 150 LGERA 333; [2007] NSWCA 38 (Kindimindi), at [19], where his Honour explained why use of the word "extends" in the provision there being considered "was not intended to be an exhaustive indication of the type or types of invalidity to which the Division applies".
Ms Novak submitted that this reasoning concerning "extends to" applied, by analogy, to s 287(2).
As in Kindimindi, she submitted, "extends to" was not a limiting phrase and s 287(2) should not be read as limiting the scope of appeal rights in s 287.
Therefore, she put that the necessary conclusion was that the EPA had made a decision in the relevant statutory sense; such a decision did relate to a revoked licence; and the licence to which this decision related was Mr Eveston's revoked licence: 1. The EPA's letter of 19 October 2020 related to Mr Eveston's revoked licence, EPL 20036; 2. The EPA's letter constituted a decision because the letter reiterated the requirement for authorisation from the EPA to access assurance funds and it rejected any further change to the conditions from the Notice of Revocation; and 3. Mr Eveston was the relevant aggrieved person for the purposes of s 287(1)(b).
Ms Novak observed that Mr Eveston relied upon his "new application" in his legal representatives' letter of September 2020 for amendment of the revocation conditions as the basis for this "fresh appeal" against the EPA's decision to refuse the amendments applied for in that new application. She noted that Mr Eveston was not seeking to appeal further the original decision which has already been appealed.
Ms Novak cited Davies J's decision in Russo v Kogarah Municipal Council [1999] NSWCA 303 (Russo), at [13], that res judicata did not apply in that case because there had been a new (fresh) decision of the council resulting in a fresh cause of action. By analogy, that was what had here taken place as a result of Mr Eveston making a fresh application to the EPA and the EPA rejecting that application.

[27]

The submissions for the EPA

Ms Withana submitted that the EPA's letter dated 19 October 2020, entitled "Request to amend Notice of Revocation of Licence 1557623" was not a "decision" for the purposes of s 287 of the POEO Act, but only constituted a response to Mr Eveston's 8 September 2020 request and, therefore, does not engage the terms of the provision.
She accepted that s 287 allows for an appeal by an aggrieved person affected by a decision of the EPA relating to the person's licence. However, Ms Withana submitted that s 287(2) qualifies this by establishing an exhaustive list of the decisions by the EPA that may be appealed.
She noted that it was submitted for Mr Eveston the alternative interpretation of s 287(2) was one which resulted in a non-exhaustive list of matters capable of being appealed. She submitted that there was no proper authority cited for this position and this interpretation should not be entertained.
The interpretation of the context of a statutory provision should be made at "first instance", not once an ambiguity is thought to arise (citing the plurality's decision in CIC Insurance Ltd v Bankstown Football Club (1997)187 CLR 384 at 408).
She proposed that s 84(2) of the POEO Act was relevant as a provision that identifies those decisions of an authority that may be stayed and this aided in the interpretation of s 287(2) because that which was sought by Mr Eveston could not be regarded as analogous with the scope of that provision.
Ms Withana proposed that the objects of the POEO Act, and in particular s 3(f), do not support the existence of a mechanism for an aggrieved person to apply repeatedly for variance of conditions attached to a Notice of Revocation for a licence. To do so would be contrary to s 3(f) "to improve the efficiency of administration of the environment protection legislation".
The only decision from the EPA that could be appealed was that of the original Notice of Revocation for the licence and its associated conditions. Mr Eveston had already appealed that decision, an appeal which resulted in the orders made on 12 February 2019 by Dixon SC.
She submitted that Murphyores did not support Mr Eveston's position because the Minister was the authority given the discretion and it was a discretion to impose a prohibition, not a condition. This was to be distinguished from the position where Mr Eveston had had, and had exercised, a statutory right of appeal.
Ms Withana acknowledged that, if the EPA were to impose further conditions on, or was itself to vary the already imposed conditions attached to, Mr Eveston's licence revocation, then that decision would be appealable. However, what was here involved was not any action initiated by the EPA.
The POEO Act, through s 79, vests the EPA with the power to revoke a licence and provides a list of factors that may be considered in the process. Section 81 allows the regulatory authority to impose conditions on a licence revocation. She said that s 81 was not a "standalone" provision as proposed for Mr Eveston. Although the EPA has an unfettered discretion to initiate further variations utilising s 81, in such instance that would enliven a further right of appeal - a position not here relevant. These factors all combine to suggest that there was "no use to consider a request to vary conditions of a licence revocation" (Transcript 31 March 2021, page 15, lines 9 and 10).
She further submitted (Transcript 31 March 2021, page 15, lines 11 to 28): Secondly, the POEO Act is comprehensive and provides avenues for the making of applications to the EPA to exercise its discretionary powers. For example, s 53 provides for the application to the regulatory authority for the EPA to make for the issue of a licence, that is something that on application could be appellable. Section 54 provides for the application to the transfer of a licence. Section 58(1) provides for the EPA to vary a licence including the conditions of a licence, and s 58(4) provides that a licensee holder may apply for the licence variation. It is notable that that Act does not provide an avenue for the making of an application to vary conditions of a revocation. In my submission the POEO Act is silent both as the discretionary power of the EPA to consider a request to vary considerations of a revocation and was also silent on the making of an application to vary conditions of a revocation, all of which point that there being no duty under the EPA to determine Mr Eveston's request to vary the conditions of his revocation and accordingly no decision was made by the EPA and as such the conditions for the gateway for appeal in s 287 are not triggered.
While Ms Withana conceded that the EPA had made a decision, she submitted it was not a decision that could be appealed pursuant to s 287(1) of the POEO Act (Transcript 31 March 2021, page 15, lines 33 and 34).
Because the EPA's response was just a decision not to vary the conditions of the revocation, that is not one which is appealable under s 287(1) and, further, had Parliament intended for a refusal to amend conditions to be reviewable on the merits, it would have explicitly provided for that avenue for appeal in the statute.
Ms Novak's reliance on Kindimindi is not completely misplaced as "extends to" may be persuasive in an appropriate circumstance, Ms Withana said. However, it was not here a provision of an expansionary nature. She put (Transcript 31 March 2021, page 16, lines 7 to 10): … it is better to view subs 2 as providing formal limitation and that the word "extends" operates as a word of limitation in a manner different to Kindimindi given the different nature of the provision that was the subject of Kindimindi. Ms Withana submitted that the necessary conclusion was that s 287 does not give the Court jurisdiction to hear this purported appeal and therefore the purported appeal was required to be dismissed.

[28]

Consideration

Reliance by Ms Novak on the decision of the High Court in Murphyores as providing parallel circumstances warranting the conclusion that Mr Eveston was entitled to make a further "application" to the EPA and that the EPA's failure to accede to this permitted a further appeal is misplaced.
In Murphyores, in his discussion of the requirement that, when there was a discretion to be exercised, an application could be made to the repository of the power to exercise the discretion and that the repository was, as a consequence, required to determine any application so made, Mason J said, at page 18: It is not to the point to say that the regulation makes no provision for the making of applications and still less that it does not explicitly impose on the Minister a duty to determine applications. The existence of the discretion attracts the principle of construction enunciated by Kitto J. It is implicit in what has been said that the existence of the discretion implies the existence of a duty to determine any application that is made.
The reference to the earlier decision of Kitto J is to his reasons in Reg v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177; [1965] HCA 27 at page 189.
In this context, it is to be observed that, here, there is no absence of the ability to make an application. On the contrary, a specific ability to make an application concerning revocation conditions (the appeal to the Court provided for in s 287(1) constituting the application for relevant purposes) is expressly provided for. The terms of such provision are set out by, and limited to, those clearly spelt out in s 287(1). Properly understood, this is a distinctly different position to that which applied in Murphyores where there was no such statutory right available to that company.
Here, the right is expressly constrained by the temporal limitation in s 287(1) that such an appeal must be commenced within 21 days after the holder of the licence is given notice of the decision (here being the original decision to attach conditions to the revocation of Mr Eveston's EPL).
The statutory scheme established by the POEO Act, which permits a person seeking approval for an EPL when one is required for the proponent's activity, embodies a process whereby such a licence can be issued subject to conditions and where, in appropriate circumstances, such a licence can also be revoked subject to conditions. Revocation is provided for in the POEO Act by s 79. It is a decision which is able to be reviewed as to either the appropriateness of the cancellation or, as is here the position, the imposition of conditions upon cancellation.
In the circumstances here involved, Mr Eveston was expressly vested with a right of appeal against the conditions which the EPA applied to the revocation of the EPL for the operation of his resource recovery and waste storage facility at the Goulburn site. Such a right of appeal was able to be exercised within 28 days of the notification to him of the revocation of his EPL (s 287(1) of the POEO Act). That time, within which an appeal is required to be made, is not amenable to being extended as the power given by r 7.1 of the Court Rules does not apply because of its exclusion by r 7.1(b) in light of the statutory limiting nominated in the POEO Act. The consequence of this is that, unlike Murphyores, the regulatory framework applicable to all EPLs effectively acts to codify all relevant processes, from initial application to extinguishment by revocation, with conditions (incorporating a right of appeal) at this ultimate stage.
Understood in this fashion, it can be seen that Mr Eveston had a single right of appeal against the conditions which had been imposed pursuant to s 287(1) of the POEO Act at the time of revocation of his EPL; Mr Eveston exercised that right of appeal; and, through the conciliation conference process conducted by Dixon SC pursuant to s 34 of the Court Act, Mr Eveston succeeded in obtaining amendments to those revocation conditions. That process, however, exhausted Mr Eveston's rights with respect to seeking alteration to the revocation conditions.
Whilst it is certainly the position that Mr Eveston was free to approach the EPA to request further modification to those conditions and that the EPA had power to make such further modification if that was considered appropriate by the EPA after consideration of Mr Eveston's request, Mr Eveston's request does not constitute an "application" in any statutory sense giving rise to a right to a further appeal pursuant to s 287(1) of the POEO Act. The appeal process provided for by s 287(1) is one strictly subject to a time-limited appeal which is unable to be extended and was a "once and for all" process available to Mr Eveston as a consequence of the imposition of the conditions imposed by the EPA at the time of revocation of his EPL.
As to the proposition said to follow from Russo that, despite the temporal limitation in s 287(1), s 287(2) acts as a significantly expansionary provision into which Mr Eveston's legal representatives' letter of 8 September 2020 could be encompassed by implication is wrong. The list in s 287(2) is to be read as defining the scope of matters capable of being encompassed by the right of appeal in s 287(1) falling within the scope of any decision of the appropriate regulatory authority with respect to an application (being an application made pursuant to ss 53 or 54 or a decision with respect to a licence which has already been granted).
The commencement of the Class 1 proceedings in November 2020 purporting to have this Court review an "appealable decision" of the EPA arising from that body declining to accede to the changes to the revocation conditions requested by Mr Eveston, in his legal representatives' letter of 8 September 2020, is entirely misplaced. There is no such right of appeal in these circumstances.
It therefore follows that the order sought by the EPA in its Notice of Motion of 7 December 2020 that these Class 1 proceedings be struck out is appropriate to be made.

[30]

The submissions for Mr Eveston

Ms Novak noted that Mr Eveston does not now appeal the decision of the Senior Commissioner in modifying the original revocation conditions as that would have resulted in seeking to reopen the 2018 proceedings. This was not permissible because the POEO Act specifies a long‑expired and fixed time limit in s 287(1) and an extension of time under the Court Rules is not available.
Ms Novak submitted that rr 1.12 and 36.5 of the UCPR and r 7.3 of the Court Rules were relevant in combination to give the Court power to extend the time for Mr Eveston to remove the waste from the premises. She acknowledged that there have been few decisions concerning r 36.5 or its precursor but those that have been given indicate the Court has the power to vary the time in which an action must be undertaken or completed (citing Mosman Municipal Council v Kelly (No 3) (2009) 167 LGERA 91; [2009] NSWLEC 92). Rule 1.12 of the UCPR and r 7.3 of the Court Rules inform the interpretation of r 36.5 of the UCPR.
In FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 (FAI), the High Court examined the precursor to r 1.12 and determined that, in order to protect against injustice, the meaning of the rule was wide. Even though FAI dealt with conditional orders, it can be applied to orders that are not conditional. The orders of 12 February 2019 should be considered conditional in nature (citing Paino v Hofbauer (1988) 13 NSWLR 193) (Paino).
She accepted that a case needed to be exceptional for the Court to adjust the timeline for actions to be undertaken when based on an agreement between the parties (Paino per McHugh JA at 198E-F, Samuels JA agreeing at 194; Clarke JA agreeing with McHugh JA at 199D and also at 201 at A-B). However, discretion should be exercised appropriately to administer justice in the circumstances of this case.
She proposed that conditions 5 and 6 of the revocation conditions should be characterised as ones requiring "a person to do an act within a specified time" for the purposes of r 36.5 of the UCPR.
The reason that the orders of 12 February 2019 should be considered conditional is that order (2) is contingent upon conditions 3, 4 and 6 being fulfilled. Because of this, she submitted, the time requirements of conditions 5 and 6 "are not absolute".
The amended Notice of Revocation and the conditions embodied by them form part of the Court's orders that were made by the Senior Commissioner. As a consequence, she said, the amended Notice of Revocation is amenable to further amendment in the fashion proposed.
Ms Novak submitted that it should not be considered that time was "of the essence" regarding the conditions for waste removal and Mr Eveston would suffer prejudice if the extension was not granted as this could potentially lead to contempt orders being sought by the EPA.
She proposed that I should accept that this case was exceptional (in the sense required by Paino) because: 1. The related criminal actions brought by the EPA against Mr Eveston had hampered his efforts to comply with the revocation conditions; 2. Mr Eveston's attempts to remove the waste from the Goulburn site had also been hampered by the lack of suitable waste facilities in the area which would be able to take the waste, coupled with issues of facility capacity and high costs of disposal; 3. Mr Eveston's wish to comply with conditions 5 and 6 should be evident from his continued attempt "to find a way out" of these difficulties; 4. Mr Eveston had been further impeded by a six‑month wait for the Hi‑Quality facility's EPL to be amended to permit it to take any waste from the Goulburn site, even though a "good rate" has been obtained; and 5. Mr Eveston's current financial position means that, without access to the financial surety funds, he will struggle to have the means to remove the waste from the premises.
She submitted that the proposed extension of time would give Mr Eveston time to improve his financial position and also allow time for the Hi-Quality waste facility to be permitted to accept waste from the Goulburn site.
Ms Novak submitted that the EPA had not expressed any intention to carry out the remediation work itself - something which the EPA could do through a substituted performance order. She also submitted that any environmental harm upon which the EPA relies could not be pressing or the EPA would have initiated clean up themselves pursuant to s 302 of the POEO Act.
In conclusion, she submitted that the Court had power to, and should, extend the time for the satisfaction of conditions 5 and 6 of the revocation conditions as proposed in this Notice of Motion.

[31]

The submissions for the EPA

Ms Withana submitted that there was now no power to make the changes to the time limits in conditions 5 and 6 of the revocation conditions attached by the EPA at the time of revocation of the EPL. However, she proposed that, if I considered that I did have such a power, I would not exercise it in this instance.
First, she submitted that rr 1.12 and 36.5 of the UCPR refer to Court "orders" and conditions 5 and 6 were not Court orders but conditions attached to the Notice of Revocation. Order (2) of the Senior Commissioner's orders of 12 February 2019 did not make conditions 5 and 6 part of orders of the Court. This means that rr 1.12 and 36.5 could not be enlivened.
Attachment 1 of those orders, which contains conditions 5 and 6, must have their construction and effect taken from a reading of the orders as a whole.
Order (2) [(2) The Notice of Revocation of Licence No 20036 (bearing notice number 1557623) (Revocation) is amended as shown in Attachment 1] is not conditional in nature.
Paino is to be distinguished because of the quite different factual nature of those proceedings.
However, even if order (2) of the Senior Commissioner's orders did make conditions 5 and 6 part of orders of the Court, they would have been final orders of the Court and should not be disturbed as provided by s 56 of the Court Act (citing Lloyd J in Pittwater Council v Brown Brothers Waste Contractors Pty Limited [2009] NSWLEC 50 at [25]) (Brown Bros).
Ms Withana submitted that the nature of the orders arising from the decision of Dixon SC were not conditional and, thus, were not amenable to the exercise of any power arising from r 1.12 of the UCPR. Nothing in the structure of the orders or the revocation conditions provided any basis for further intervention. She observed that (Transcript 31 March 2021, page 23, lines 44 to 47): The conditions in respect of order 3 and every other order thereafter is for the satisfaction of the EPA not this Court. Those are conditions that must be satisfied by the applicant to the EPA, it doesn't require any further intervention by this Court.
However, if I was of the view that I did have power to exercise discretion to extend the time as proposed by Ms Novak, Ms Withana submitted it was not appropriate that I should do so. She advanced the following reasons for this: 1. Mr Eveston agreed to conditions 5 and 6 in the revocation orders; 2. Mr Eveston never sought to extend the time to remove the waste between when the consent orders were made (12 February 2019) and May 2019 when the EPA wrote to Mr Eveston's solicitors to "discuss the removal"; 3. There had been a delay of almost two years before Mr Eveston filed the Notice of Motion seeking to extend the time without any proper explanation for the delay; 4. Continued storage of the waste into 2023 would "amount to actual or potential harm to the environment and human health"; 5. There is no proper evidence to suggest Mr Eveston's financial position will change and allow him to satisfy the new timeline if the extension was granted; 6. Mr Eveston did not seek an extension of time when, six days prior to the deadline for condition 6 of the Notice of Revocation, the Council's tip facility refused to take the waste for lack of upfront payment. Mr Eveston should have contemplated being in breach of condition 6 and taken some action at that time; 7. On 20 May 2019, one day prior to the deadline for condition 6, Mr Eveston explained that he was unable to find a facility to receive the waste from his premises and he was still experiencing financial hardship. As this is a recurring "theme", there is no evidence to suggest it will change; 8. The earliest Mr Eveston applied for an extension of time to vary the conditions was 8 September 2019; 9. The waste facility to which Mr Eveston refers is likely the MH Earthmoving Pty Ltd facility in Gundagai and/or the Tumblong Non Putrescible Waste Disposal Facility in Tumblong. Neither of these is able to accept the waste presently stored at the Goulburn \ site; 10. Mr Eveston's environmental history does not suggest that he will comply with conditions 5 and 6 if time is extended; 11. Based on Mr Eveston's evidence and submission, he proposes a "lengthy extension of time" to comply with orders 5 and 6; and 12. By allowing an amendment, the conciliation process provided for by s 34 of the Court Act would be undermined if consent orders based on a s 34 conference were altered after the fact.
Ms Withana summarised the position put by the EPA as being: 1. I should not find that power existed pursuant to rr 1.12 and/or 36.5 of the UCPR to amend the time requirements as proposed by Mr Eveston; 2. However, if I did find that I do have the power, as a matter of discretion, I should not exercise amend the conditions as proposed by Mr Eveston; 3. This Notice of Motion should be dismissed with costs.

[34]

The power to grant the extension of time sought by Mr Eveston

There are two separate aspects to the position adopted by the EPA with respect to whether or not I might have power to amend conditions 5 and 6 in the revocation conditions referred to in order (2) of the Senior Commissioner's orders (as provided for in Annexure 1) to her decision. The first contention pressed by Ms Withana on behalf of the EPA is that, although referred to in order (2) of the Senior Commissioner's orders, Annexure 1 does not form part of the orders of the Court and is thus, whatever might be the limitations on the exercise of power provided for by rr 1.12 and 36.5 of the UCPR, Annexure 1 is not able to be considered as it does not fall within the concept of being an order of the Court.
This proposition, I am satisfied, is entirely without foundation. My reasons for rejecting it can be explained in comparatively short compass. The Senior Commissioner's orders were, she was satisfied, ones she could make properly, as the only test she is permitted to apply to such orders arising out of an agreement pursuant to s 34 of the Court Act is that it embodied "a decision that the Court could have made in the proper exercise of its functions". The Senior Commissioner records, in [13] of her decision, that: 13 Based on my understanding of the evidence before me, I accept the agreed arrangement is within jurisdiction and thereby lawful and I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act
Her orders necessarily encompass the full suite of matters agreed to by the parties as resolving the issues in dispute in the Class 1 proceedings in which they arose. As can be seen from the terms of order (7), express provision was made to permit the EPA to extend time for compliance with revocation conditions 5 and 6 contained in Annexure 1. The Senior Commissioner's order (7) was in the following terms: Any extensions of time granted by the EPA under (6) are not to exceed 3 months calculated on a cumulative basis.
The second basis upon which Ms Withana submits I do not have power to utilise rr 1.12 or 36.5 of the UCPR for the purposes proposed by Ms Novak is that the orders made by the Senior Commissioner are final, and that, as a consequence, s 56 of the Court Act precludes me from intervening with respect to the time in revocation conditions 5 and 6 - even if I was persuaded, on the merits, that such a course was potentially warranted.
It is, first, appropriate to set out again the terms of s 56 of the Court Act. It reads: 56 Nature of decision of the Court Except as provided - (a) by Division 2, in relation to proceedings in Class 1, 2, 3, 4 or 8 of the Court's jurisdiction, or (b) by the Criminal Appeal Act 1912, in relation to proceedings in Class 5, 6 or 7 of the Court's jurisdiction, a decision of the Court shall be final and conclusive.
In support of her proposition that the above provision acts to preclude me from extending the time in revocation conditions 5 and 6 as proposed for Mr Eveston, Ms Withana relied on [25] of the decision of Lloyd J in Brown Bros.
Mr Eveston's 2018 Class 1 appeal against the conditions imposed by the EPA at the time of revocation of his EPL was (as is conceded on his behalf, on this occasion) the only appeal then available against that initial determination and imposition of conditions. The orders made by the Senior Commissioner in disposition of those Class 1 proceedings on foot pursuant to s 287(1) of the POEO Act, are necessarily to be regarded as the final orders disposing of those proceedings and thus appearing to fall squarely within the terms of s 56 of the Court Act as applied by Lloyd J in Brown Bros.
However, it is to be noted that the various provisions of the UCPR, and of the Court Rules which were relied upon by the respondent in Brown Bros (for the purposes of seeking an extension of time for compliance), did not include r 36.5(1) of the UCPR. It would appear that his Honour's attention was not drawn to the flexibility embodied in that rule as giving a power to extend time for compliance with an order.
Here, giving such an extension would not in any fashion interfere with the final and conclusive nature of the decision arising from the process undertaken by Dixon SC and would not be contrary to s 56 of the Court Act - r 36.5 is a beneficial and facultative provision which permits flexibility in giving effect to the outcome mandated by such a decision.
It therefore follows that I am satisfied that I do have power arising from r 36.5 of the UCPR to permit me to make the changes to revocation conditions 5 and 6 as sought should I be satisfied that there was an appropriate merit basis for me to do so.

[35]

Mr Eveston's ability to effect removal of the waste

Having concluded that I do have power to amend the times for compliance with conditions 5 and 6 of the revocation conditions as amended by the Senior Commissioner's orders, I now turn to address the question of whether, as a matter of discretion, it would be appropriate to extend the time in the fashion sought by Mr Eveston.
This requires my consideration of the extent to which I could have confidence that Mr Eveston would be able to:

remove more than half the waste (~3,500 cubic metres) stored on the Goulburn site by 21 May 2023 (this being the proposed interim performance target and date for partial removal sought to be inserted in amended revocation condition 6 by Mr Eveston's time extension Notice of Motion); and
completely remove all the 6,860 cubic metres of waste stored on the Goulburn site by 21 September 2023 (this being the proposed finalisation date for removal sought to be inserted by Mr Eveston in amended revocation condition 5),

I am satisfied that the appropriate course to follow is to assume, for the purposes of this contingent consideration, the most optimistic position advanced for Mr Eveston about the cost of removal to, and location of, a potential site where lawful disposal of the waste could be effected.
In this regard, as I understood the evidence for, and submissions made on behalf of, Mr Eveston, the total potential cost of disposal of the waste on this most favourable basis to Mr Eveston is at least somewhat in excess of $400,000. It is to be noted, in passing, but not to be taken into account at this point, that the estimate for the EPA of the lawful disposal costs is, perhaps, some three times this amount. For present purposes, I undertake this assessment on the basis advanced on Mr Eveston's behalf rather than the considerably more pessimistic one advanced for the EPA.
I haver earlier set out the nature of the information I have concerning Mr Eveston's present financial position. It is clear from that material, as I earlier observed, that Mr Eveston is impecunious. It follows from the obvious state of his current financial position that there is zero prospect of Mr Eveston financing the removal of the waste from his own currently available financial resources. Indeed, it is likely that Mr Eveston would be unable to finance the removal of any amount of the waste, whatsoever, at the present time.
It is, therefore, necessary to consider whether or not there is any reasonable prospect that Mr Eveston's financial position will improve to such a significant extent, over the period of the next some 29 months, to enable me to reach a rationally justifiable conclusion that there was a realistic prospect that Mr Eveston would be able to effect the removal of the 6,860 cubic metres of waste from the Goulburn site by 21 September 2023 if the sought extensions of time were to be granted to him.
The only evidence that I have concerning what is submitted to be the potentiality of a significant change in Mr Eveston's financial circumstances is contained in the extracted conversation between Ms Menyhart and Mr Eveston earlier set out from Ms Menyhart's affidavit of 15 February 2021.
As these are interlocutory proceedings, I disregard the fact that that evidence is hearsay and simply have regard to it in the terms given. The terms of the relevant element of that evidence warrant repetition at this point. Ms Menyhart's evidence was in the following terms: 4 On 15 of February 2021 I had a discussion with Mr Eveston to the following effect: … Mr Eveston said: My dad is also a director of a company called Northern Park Pastoral. I am currently trying to help him line up a business deal with another company. If the deal gets through, then I will be entitled to a get a cut from the deal - a finders fee if you like. I said: That would be great, let me know what happens. Mr Eveston said: If I get that money, I'll use the two trucks to remove the waste from Goulburn - if someone will take it.
There are three reasons why this evidence cannot give me any confidence at all that Mr Eveston's financial position will change in a fashion establishing that he would be able to remove the waste within the extended periods sought. These reasons are: 1. First, the potential for crystallisation of the postulated "finder's fee" is contingent on Mr Eveston's father succeeding in obtaining an unidentified business deal. In addition to the contingent nature of this potentiality, no identifying information whatsoever has been provided of the nature of the potential business venture, thus adding a further element of uncertainty; 2. Second, there is no evidence as to when the hypothesised financial improvement might occur and, thus, if it did occur, when Mr Eveston might reasonably be expected to be in a financial position to embark upon the removal process for the waste on the Goulburn site; and 3. Finally, there is no evidence at all, even if the above two contingencies came to fruition, as to what would be the quantum of the benefit which would accrue to Mr Eveston under the circumstances. There is certainly no available evidence that could cause me to conclude that such benefit (should it eventuate) would be more than the ~$400,000 (the minimum amount on Mr Eveston's case) that it would cost to effect the removal of the 6,860 cubic metres of waste from the Goulburn site.
It therefore follows that there is no rational evidentiary basis upon which I could grant the extension of time proposed as I cannot conclude that doing so would do anything more than postpone further default on Mr Eveston's part.
The extension of time must be refused and the Notice of Motion in the 2018 proceedings dismissed.

Eveston v Environment Protection Authority

At a glance

Court

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Judgment (38 paragraphs)

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Cases Cited (11)