Verde Terra Pty Ltd v Environment Protection Authority

Judgment

1. HIS HONOUR: Verde Terra Pty Ltd (the Company) is the holder of an Environment Protection Licence (EPL), EPL 11395, issued by the Environment Protection Authority (the EPA) under the Protection of the Environment Operations Act 1997 (the POEO Act), for the Company's waste disposal operations at Mangrove Mountain in the hinterland of the New South Wales Central Coast.
2. On 23 September 2015, the Company applied to the EPA for a variation of its EPL. There is an ability of the EPA to vary the licence (including varying conditions to the licence) that is vested in the EPA by s 58(1) of the POEO Act. Although there were exchanges between the Company and the EPA during the period up to 31 May 2018, the EPA has not determined the application made by the Company for variation of its EPL.
3. On 31 May 2018, the Company commenced these proceedings in Class 1 of the Court's jurisdiction concerning the application for variation of the EPL, seeking two substantive orders. First, that the appeal against the deemed refusal be upheld and, second, that EPL 11395 be varied in accordance with Application 1558295 dated 21 September 2015 purporting to be received by the Environment Protection Authority on 25 September 2015. The differences between dates, as enunciated in the proposed second order, are of no relevance in these proceedings.
4. On 3 October 2018, the EPA filed a Notice of Motion in these Class 1 proceedings concerning the 2015 variation application seeking that the proceedings be dismissed and that the Applicant, that is the Company, pay the EPA's costs of the proceedings and of the motion.
5. The rights to appeal to the Court concerning licence applications, including applications to vary licences, are contained in s 287 of the POEO Act. The elements of that provision are relevant in these proceedings on the Notice of Motion. First, s 287(1) provides as follows: Any person: (a) Who makes a licence application and who is agreed by the decision of the appropriate regulatory authority in respect of the application or; (b) Who is or was the holder of a licence and who is agreed by any decision of the appropriate regulatory authority with respect for the licence May, within 21 days or such period, or such other period as is prescribed instead by the regulations I interpolate there is no such other period provided for by the regulations. after being given notice of the decision of that Authority, appeal to the Land and Environment Court against the decision.