Blue Mountains Conservation Society v Delta Electricity

June 2009 to October 2011

On behalf of the Blue Mountains Conservation Society, EDO NSW ran civil enforcement proceedings in the NSW Land and Environment Court against Delta Electricity under the Protection of the Environment Operations Act 1997(POEO Act), for water pollution into the Coxs River which is part of Sydney’s drinking water supply.

The litigation ran for over two and a half years, and was finally settled out of Court by the parties in October 2011. There were a number of judgments on various aspects of the case in that time, including:

• On 9 September 2009, EDO NSW successfully obtained a maximum costs order in the amount of $20,000, limiting the Society’s liability to pay Delta’s costs if unsuccessful. Justice Pain of the Land and Environment Court made the order on the basis that the case was brought in the public interest, was likely to raise novel questions of law and that the applicant could not continue unless an order capping costs was made. Justice Pain also ordered BMCS to provide security for Delta's costs in the amount of $20,000.

• On 18 October 2010, the Court of Appeal (Beazley JA, Basten JA and Macfarlan JA) dismissed Delta’s appeal against the orders made by Justice Pain, confirming that the litigation may be characterised as being in the public interest.

• On 26 August 2011, Justice Pepper of the Land and Environment Court dismissed Delta’s application to have the Society’s case struck out of Court, on the grounds that the Society had the right to bring civil enforcement proceedings for a breach of s.120 of the POEO Act, and that stopping the continuing pollution would be a practical remedy that could be imposed in respect of the past breaches. The Court awarded costs in favour of the Society.

Following the Court’s rejection of Delta’s strike-out motion, the parties agreed to try to resolve the issues through voluntary mediation. On 11 October 2011, the Society agreed to discontinue the proceedings on the following grounds:

1. Delta admits that it has discharged waste waters containing the pollutants between May 2007 and August 2011, and that it polluted waters within the meaning of s. 120 of the POEO Act, without authorisation under its licence, except in relation to salt; and

2. Delta submits an application to the EPA to vary its licence to specify maximum concentration levels for copper, zinc, aluminium, boron, fluoride, arsenic, salt and nickel; and

3. Delta submits an application to the EPA to include a condition in its licence requiring the implementation of a program of works for the full treatment of cooling tower blow down water from Wallerawang power station.

Delta has agreed that it will do the works necessary to stop the pollution, and that in the interim, it will apply for limits to be set on those pollutants. What those limits will be is a matter to be determined by the EPA, and must include input from the community. The admission from Delta is important in this case because it is an acknowledgment that unless there is express authorisation under an environment protection licence to discharge pollutants, any such discharge is unlawful, even where the company is required to monitor the discharge of those pollutants. This has implications for many other licences in NSW that may have similar conditions.

EDO NSW is grateful to barrister Tom Howard who appeared on behalf of BMCS throughout the various proceedings, and for his ongoing assistance in this matter.

Judgment - Summary dismissal refused

Media release  - Delta remediation

Judgment Appeal