Jeffman Pty Ltd and Lawrence Dry Cleaners Pty Ltd v Environment Protection Authority of NSW, Sydney Water Corporation and Douglas and Hilary Hutchinson [2011] NSWLEC 89

Jeffman Pty Ltd and Lawrence Dry Cleaners Pty Ltd v Environment Protection Authority of NSW, Sydney Water Corporation and Douglas and Hilary Hutchinson [2011] NSWLEC 89

The EPA's Management Order should be revoked and replaced because the parties agreed the existing order should not stand and the Court was satisfied that a new order was required to address contamination of groundwater beneath the Source Site and adjoining lands. Applying the subsidiarity principle, the Court held that the order should set clear remediation standards and timeframes but should not expressly or impliedly exclude EISB, despite uncertainty about its efficacy, because the applicants should receive one further opportunity to use it subject to strict monitoring, interim targets, adaptive management, independent expert review, EPA approval, reporting and enforceability...

Jurisdiction
Australia
Judgment Date
26 May 2011
Procedural Posture
Class 1 Appeal Under S 61 of the Contaminated Land Management Act 1997 Against a Management Order / Principal Judgment After Hearing
Outcome
Appeal upheld; EPA Management Order revoked; new Management Order made; costs reserved.
Legal Topics
['management Order' 'remediation of Contaminated Groundwater' 'dense Non Aqueous Phase Liquids' 'enhanced in Situ Bioremediation' 'ecologically Sustainable Development' 'subsidiarity Principle' 'polluter Pays Principle' 'adaptive Management' 'site Auditor and Remediation Action Plan Approval']
['environmental Law' 'contaminated Land' 'administrative Law'] ['management Order' 'remediation of Contaminated Groundwater' 'dense Non Aqueous Phase Liquids' 'enhanced in Situ Bioremediation' 'ecologically Sustainable Development' 'subsidiarity Principle' 'polluter Pays Principle' 'adaptive Management' 'site Auditor and Remediation Action Plan Approval']

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Procedural Posture

Class 1 Appeal Under S 61 of the Contaminated Land Management Act 1997 Against a Management Order / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Management Order dated 3 June 2010 should be revoked and replaced with a new Management Order.' 'Whether the Management Order should leave the choice of remediation technologies to the applicants or preclude the use of Enhanced In Situ Bioremediation.' 'What timeframes should be imposed for containment and treatment of Significant Contaminants on the Source Site and in the groundwater plume.' 'Whether investigations should include Light Non-Aqueous Phase Liquids as well as Dense Non-Aqueous Phase Liquids.' 'Whether the applicants should investigate deeper groundwater contamination beneath the Source Site and adjoining lands.' 'Whether containment obligations should apply only to the Source Site or also to the Young Street Site.' "Whether the remediation action plan should be approved by the EPA after independent expert panel review rather than by the applicants' Site Auditor." 'What reporting, monitoring, access and consultation requirements should be included in the Management Order.']

Ratio Decidendi

The EPA's Management Order should be revoked and replaced because the parties agreed the existing order should not stand and the Court was satisfied that a new order was required to address contamination of groundwater beneath the Source Site and adjoining lands. Applying the subsidiarity principle, the Court held that the order should set clear remediation standards and timeframes but should not expressly or impliedly exclude EISB, despite uncertainty about its efficacy, because the applicants should receive one further opportunity to use it subject to strict monitoring, interim targets, adaptive management, independent expert review, EPA approval, reporting and enforceability...

Court Disposition

Appeal upheld; EPA Management Order revoked; new Management Order made; costs reserved.

Orders

  • ['The appeal is upheld.' 'Management Order No. 20101404 dated 3 June 2010 made by the Environment Protection Authority of NSW is revoked.' 'The Management Order annexed to the judgment is made.' 'The question of costs of the proceedings is reserved.']