Gray v Macquarie Generation

COURT OR TRIBUNAL

New South Wales Land and Environment Court

DATE FILED (OR FIRST HEARING DATE)

02/12/2009

LITIGATION TYPE

Project Approval - Mitigation, Access to Justice

SUBJECT MATTER

Coal-fired and gas-fired power station, Costs

REVIEW TYPE

Judicial review

SUMMARY

In the first judgment, Gray and another, as part of a climate action group called Rising Tide, argued that CO2 had to be regulated as a waste pollutant. Macquarie Generation's licence to run the Bayswater coal-fired power station did not authorise it to emit this waste and so its emissions were unlawful. In the alternative, Gray argued that if the licence did permit CO2 emissions, then the licence did not authorize their emission in a manner that did not have reasonable regard and care for the interests of other persons and the environment. Macquarie Generation filed a Notice of Motion seeking dismissal of the proceedings. The Court accepted the motion in respect of the first claim, that Macquarie Generation did not have lawful authority to emit CO2.

In the second judgment relating to costs, the submission of Gray and his fellow applicant was dismissed summarily. Following the reasoning in Caroona, the Court held that this was public interest litigation in part because it brought to the court a novel matter to decide on. As such the Court held that the applicants should not have to pay Macquarie Generation and the other respondent's legal costs.

In the third judgment, the applicants were granted leave to amend their claim to better argue that there is an implied condition in the licence which limits the emission of CO2 from the power station to a level that has reasonable regard and care for the interests of other persons and/or the environment.

In the fourth judgment, Macquarie Generation appealed Pain J's decision to grant leave to the applicant to amend its claim. The Court of Appeal held that Macquarie Generation's licence to pollute did not contain an implied (or common law) limitation on the amount of carbon dioxide that it could release and as such the case had no reasonable prospects of success. The Court also found that the licence did not contain a limit on how much coal could be consumed at the power station.

CASE DOCUMENTS

Gray v Macquarie Generation [2010] NSWLEC 34
Gray v Macquarie Generation (No 2) [2010] NSWLEC 82
Gray v Macquarie Generation (No 3) [2011] NSWLEC 3
Macquarie Generation v Hodgson [2011] NSWCA 424