Verde Terra Pty Ltd v Environment Protection Authority (No 2) [2018] NSWLEC 160

Verde Terra Pty Ltd v Environment Protection Authority (No 2) [2018] NSWLEC 160

The Court did not have power under s 58(6) of the Protection of the Environment Operations Act 1997 or s 8(f) of the Protection of the Environment Administration Act 1991 to require the consultation sought, because the Court was not the appropriate regulatory authority and the EPA was functus officio. However, the Court had power under s 38(4) of the Land and Environment Court Act 1979 and, alternatively, s 61 of the Civil Procedure Act 2005 to direct public consultation in connection with the Class 1 appeal. It was appropriate to exercise that power immediately because public submissions would inform the Court and the parties about issues arising in the appeal and the process would not...

Jurisdiction
Australia
Judgment Date
11 October 2018
Procedural Posture
Class 1 Appeal Against Refusal to Vary Environment Protection Licence 11395 / Notice of Motion Seeking Public Consultation on Proposed Variation to Environment Protection Licence
Outcome
The Court held that it had power to order public consultation and that it was appropriate to do so, but adjourned the making of orders to permit discussion about the terms of the proposed advertisement and publications; agreed orders and a revised advertisement were provided on 18 October 2018.
Legal Topics
['environment Protection Licence Variation' 'public Consultation' 'court Directions in Class 1 Proceedings' 'costs of Motion and Compliance']
['environmental Law' 'civil Procedure' 'land and Environment Court Procedure'] ['environment Protection Licence Variation' 'public Consultation' 'court Directions in Class 1 Proceedings' 'costs of Motion and Compliance']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal to Vary Environment Protection Licence 11395 / Notice of Motion Seeking Public Consultation on Proposed Variation to Environment Protection Licence

Legal Issues

  1. 1 ['Whether the Court had power to require public consultation on the proposed variation to Environment Protection Licence 11395.' 'Whether any power to require public consultation should be exercised before determination of a contested development consent issue.' 'Whether and how costs of the motion and costs of compliance with consultation orders should be dealt with.']

Ratio Decidendi

The Court did not have power under s 58(6) of the Protection of the Environment Operations Act 1997 or s 8(f) of the Protection of the Environment Administration Act 1991 to require the consultation sought, because the Court was not the appropriate regulatory authority and the EPA was functus officio. However, the Court had power under s 38(4) of the Land and Environment Court Act 1979 and, alternatively, s 61 of the Civil Procedure Act 2005 to direct public consultation in connection with the Class 1 appeal. It was appropriate to exercise that power immediately because public submissions would inform the Court and the parties about issues arising in the appeal and the process would not...

Court Disposition

The Court held that it had power to order public consultation and that it was appropriate to do so, but adjourned the making of orders to permit discussion about the terms of the proposed advertisement and publications; agreed orders and a revised advertisement were provided on 18 October 2018.

Orders

  • ['The making of orders was adjourned until Thursday 18 October 2018 to permit discussions about the terms of the proposed advertisement and the publications in which it would appear.' 'On 18 October 2018, the parties provided agreed orders and a revised advertisement.']