Macquarie Generation v Hodgson [2011] NSWCA 424

Macquarie Generation v Hodgson [2011] NSWCA 424

Statutory offences under the Act impose statutory duties, so s 252(1) proceedings are within jurisdiction, but Macquarie's licence does not contain any implied or common law condition limiting emissions or coal consumption; there is no basis for importing restrictions from the EIS; neither ss 64(1) nor 115(1) claims stand without such implied conditions.

Jurisdiction
Australia
Judgment Date
22 December 2011
Procedural Posture
Appeal / Final Judgment
Outcome
Appeal allowed
Legal Topics
['pollution' 'statutory Duty' 'statutory Licence' 'nuisance' 'implied Terms' 'waste Disposal']
['environmental Law' 'criminal Law' 'tort Law'] ['pollution' 'statutory Duty' 'statutory Licence' 'nuisance' 'implied Terms' 'waste Disposal']

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Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 ['Whether statutory offences under ss 64(1) and 115(1) of the Protection of the Environment Operations Act 1997 are breaches of statutory duty within s 252(1)' "Whether Macquarie's licence contains an implied or common law condition limiting emissions of CO2 based on reasonable care for the environment" 'Whether Macquarie had lawful authority for the emission of waste (CO2) under s 115(2)' 'Whether licence contains an implied condition limiting coal consumption to 7 million tonnes per year']

Ratio Decidendi

Statutory offences under the Act impose statutory duties, so s 252(1) proceedings are within jurisdiction, but Macquarie's licence does not contain any implied or common law condition limiting emissions or coal consumption; there is no basis for importing restrictions from the EIS; neither ss 64(1) nor 115(1) claims stand without such implied conditions.

Court Disposition

Appeal allowed

Orders

  • ['Appeal allowed with costs' 'Orders 1 and 2 made by Pain J on 4 March 2011 set aside' "Applicant's notice of motion of 15 June 2010 dismissed with costs" "Applicant's amended summons dismissed with costs, but not so as to disturb any existing orders for costs in favour of the applicant" 'Respondent to have a...