Macquarie Generation v Hodgson

(2011) 186 LGERA 311; [2011] NSWCA 424

NSW Court of Appeal

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Interrogate

Catchwords

1. Environmental Law
2. › Pollution
3. › Emissions
4. › Statutory licence
5. › Whether implied condition limiting emissions
6. › Protection of the Environment Operations Act 1997 (NSW), ss 48, 55, 63, 64(1), 115(1), 252(1)
1. Contract
2. › Implied terms
3. › Implication of terms in statutory licences
4. › Whether BP Refinery conditions for implication of ad hoc terms apply by analogy to statutory licences
5. › Whether implied condition necessary, obvious, clear and consistent with express terms
1. Tort
2. › Nuisance
3. › Defence of statutory authority
4. › Reasonable care qualification
5. › Whether common law qualification on statutory authority defence can be imported as implied condition of statutory licence
1. Statute
2. › Statutory offences
3. › Whether offence provisions create statutory duties
4. › Whether breach of offence provision is 'breach of this Act' for standing purposes
5. › Protection of the Environment Operations Act 1997 (NSW), s 252(1)

Quick Take

The BP Refinery/Codelfa requirements for implication of ad hoc terms in contracts apply by analogy to statutory licences under the Protection of the Environment Operations Act 1997, making due allowance for the differences in the nature of the instruments. The common law qualification on the defence of statutory authority in nuisance (requiring reasonable care) cannot be imported as an implied condition of a statutory licence because those principles protect private common law rights and are irrelevant where no common law rights have been infringed. Statutory offence provisions create statutory duties sufficient to enliven open standing provisions such as s 252(1) of the Act.