Weston Aluminium Pty Limited v Alcoa Australia Rolled Products Pty Limited
[2007] HCATrans 319
•20 June 2007
[2007] HCATrans 319
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S373 of 2006
B e t w e e n -
WESTON ALUMINIUM PTY LIMITED
Applicant
and
ENVIRONMENT PROTECTION AUTHORITY
First Respondent
ALCOA AUSTRALIA ROLLED PRODUCTS PTY LIMITED
Second Respondent
Office of the Registry
Sydney No S211 of 2007
B e t w e e n -
WESTON ALUMINIUM PTY LIMITED
Applicant
and
ALCOA AUSTRALIA ROLLED PRODUCTS PTY LIMITED
Respondent
GLEESON CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON WEDNESDAY, 20 JUNE 2007, AT 10.22 AM
Copyright in the High Court of Australia
__________________
MR B. WALKER, SC: May it please the Court, I appear with my learned friend MR P.C. TOMASETTI for the appellant. (instructed by Kanjian and Company)
MR R.J. ELLICOTT, QC: Your Honours, I appear with MR S.A. DUGGAN for the respondent in the first appeal and for the second respondent in the other. (instructed by Holding Redlich)
GLEESON CJ: Yes, Mr Walker.
MR WALKER: Your Honours will have seen from the papers that the relation between the appeal and the application is as follows. Were we to be successful in the appeal, it would in substance amount to a conclusion by the Court that there was, in effect, no development consent permitting the particular industrial activity, to which I shall come in a moment, to be carried on. If that were so then there would be enlivened, in relation to the application, the issue already dealt with in the reasoning of the Court of Appeal but with the opposite outcome from what we desire, namely, whether there could be sought a variation of a license being a license necessary for the activity to produce what is called “a hazardous waste.” The application will raise, therefore, contingently upon the outcome of the appeal, the question of the meaning of the statutory provisions regulating the grant of a licence and its variation in the context of the conclusion by the Court on the appeal concerning the development consent.
The activity in question concerns processes to do with the production of aluminium which it is notorious is produced as well by the recycling of refined aluminium in finished products in the community as well as from original ore. In this case, at the heart of the matter is a sequence of development consents which happen to straddle the introduction on 1 September 1980 of New South Wales’ current planning regime regulated by the Environmental Planning and Assessment Act 1979.
That statute, as your Honours would be aware, has been through a number of changes. For present purposes, though there is wholesale and, at least to some people at the Bar, utterly confusing renumbering of provisions and also rephrasing of some of them, for present purposes the ones that matter concerning the 1980 and 1981 consents are to be found appended to our written submissions. They are immaterially the same though not verbatim form as current provisions which do not affect this matter directly.
Your Honours, before going to the detail of the development applications for consents and their interrelation, could I seek to explain that the terminology your Honours will have seen in the papers, include a remelt or remelting facility, which mercifully is just as the name would suggest. It also includes a rotary furnace. That is a furnace which is part of what we are going to call the “can reclamation plant”. We call it that because that is what all the contemporaneous documents call it, but it needs to be understood that that is a controversial description.
The respondent will no doubt accuse us of being tendentious in using that label, but we are using it (a) because we say it does have meaning and (b) because it is the one used in the document. The rotary furnace is in the can reclamation plant. There are other activities involving the application of heat and the producing of molten material in the remelt facility.
The production of material in a remelting process involves the inevitable by-product called “dross”. That is an oxide of aluminium. I think it is aluminium hydroxide. What matters for present purposes is that, as was common ground between the parties, the dross was something which, as to its handling, was regulated by the 1981 consent, to which I will be coming, for the remelt facility. The dross referred to in that consent was the dross produced by the industrial activities regulated by the 1981 consent, the remelt facility. There is no mention in that 1981 consent of dross being produced by the conduct of industrial activities anywhere else in the world, that is, off the land or the site which was subject to the 1981 consent.
At the heart of the statutory argument we wish to present, an argument which we submit is crucial to a proper regulation of land use by statutory regimes such as apply in New South Wales, is the attribution to particular land of the particular or specific regulation or regime which is imposed by the combination of general provisions called, call them zoning and specific provisions, call that consent.
At the heart of our argument is that in the 1981 consent for the remelt facility, nothing whatever is said to permit the processing in the remelt facility or anywhere else, and I stress “or anywhere else”, of dross produced anywhere else. The only relevant regulation of dross relates to the dross produced on the site regulated by the 1981 consent. That is impelled by the terms of that 1981 consent to be put back into the rotary furnace regulated by the 1980 consent ‑ ‑ ‑
HAYNE J: It is notable that the party’s submissions in your case ask whether the consent permits repayment and asks whether the consent prohibits.
MR WALKER: Yes. They turn out to be the two sides of one coin. May I draw to attention in relation to the phrasing that Justice Hayne notes, in paragraphs 1 and 2 of the issues as specified in the respondent’s submissions, your Honours will have noticed that the first question as raised by the submissions is, as it were, entirely at large. It does not refer to any particular consent, that is, any particular statutory instrument.
Clearly enough, however, when one compares that with the way in which we have raised the same matters in paragraphs 1 and 2 of our submissions, clearly enough in final effect they are the same. There is an important consideration, however. In our paragraph 2, we nominate the only consents which could be in question and we ask whether they permit the other side of the coin. “Does it prohibit?” is a question which introduces the confusing possibility of what I will call a default position, namely that those things are permitted which are not prohibited. That is a false position. It is not in fact advanced by the respondent.
Their question 2 - they appear to raise that possibility but there is no argument to develop it. It is not the law – and this is common ground – that but for prohibition in a development consent, there may be anything done at all. As one would expect from the nature of an instrument which is called “development consent”, it is that fiat from government which is required before you can carry out the development, whether that is producing structures or conducting activities. Thus, the proper question is as we phrased it, namely, do the consents permit that which is in question between the parties?
Now, your Honours, it is in that manner that the relation between the two consents, to which I am about to come in detail, governs the controversy between the parties. There is, I stress, specific reference to dross, but it is what I will call “Yennora dross” in the 1981 remelt facility consent. That is not merely permitted to be, but is positively required to be, processed in the rotary service on the same overall site, but not, as it happens, on the land governed by the 1981 consent itself.
The 1980 consent governs the rotary furnace in the can reclamation plant and it is by the combination of the compulsory dross reprocessing in it and otherwise its terms as to what is sometimes called feedstock – which, as the expression suggests, is what you put into the furnace – which will determine the question as to whether dross from elsewhere. It happens to be from Point Henry but it could be, according to the respondent’s position, from anywhere in the world, it would appear. That is what is at stake in this case.
Along the way, the issues include the question as to whether there is or should be any particular or peculiar restriction on the way in which one reads development consents contextually, that is, reads them so as to understand their words in the context in which they were written. That raises questions as to analogy or false analogy with statutory interpretation, contractual interpretation, the interpretation of delegated legislation, the interpretation of wills and the like, and it is our argument, of course, that there is nothing so special in this area as to require an “un” or “anti” contextual reading of these development consents.
May I now take your Honours to the material by which we try to make good the relation between these consents concerning the activity in question which I have just summarised? In the appeal book, could I start by taking your Honours to the first, in time that is, of the relevant consents, which was granted on 25 February 1980. It commences at page 22 of the appeal book. The council is the consent authority under the provisions of Part XIIA of the then Local Government Act thereby granted, if one picks it up just after line 10, consent in respect to land described by various parcel designations and by a location which your Honours see:
bounded by Kiora Crescent, Norrie Street and Loftus Road.
I will take you to those in a moment. Consent is hereby granted:
for the erection of –
what is called –
Stage 1 of a can reclamation plant –
The can reclamation plant, that is the phrase I referred to earlier, is said there to be one:
consisting of 1 bag house –
a bag house is in the nature of a filter device. You will find its mechanics explained at appeal book 40. I am not going to take your Honours to it –
1 rotary furnace –
that is a critical part of the apparatus in question –
can reclamation and storage areas together with a can buy‑back centre -
“buy-back” describing the means by which people in the community are encouraged to produce or hand back aluminium for recycling. The next two lines are obviously critical. Those words, perhaps tautologously but certainly emphatically, by the next line, given the status of providing the limit of the consent in question:
and the like and no consent is given or implied for any other industrial activity –
It is necessary, when considering the notion of industrial activity, to read charitably these documents. Your Honours will have seen that the consent is for what is called:
the erection of a Stage 1 of a can reclamation plant –
It has been common ground and it is certainly not the subject of any reneging by us that this is a consent that nonetheless permitted them to use what they had erected. We have certainly never suggested to the contrary. I will draw to attention, though not dwell on, condition 2, to which this consent was subject, which concerns “OFF-STREET PARKING”. I draw it to attention particularly because of the last three lines which use language which is redolent of an overall, or to use the particular language, a “total development”.
The Yennora site, your Honours will find, was understood to be, was physically divided and was designated as being north and south by reference to certain dividing lines to which I will come. One can see “total development” as being an expression which refers to parts of the north, parts of the south, but particularly to an improvement of Comalco’s, as it was then, overall activities by a combination of not only the can reclamation plant but also, as you will see in 1981, the remelt facility being a new one compared to an old one or existing one.
At the foot of page 23, however, it therefore becomes significant to note in condition 16 that, again perhaps redundantly but certainly emphatically, that which was permitted by this consent was the limit:
future additions to the buildings or occupations of the site will require the prior consent of the Council.
Paragraph 17 continues on page 24. One sees the second line, the reference to the can buy-back centre as being relevant to an understanding of the character of the activity. Condition 20 on page 24 again emphasises that:
No consent is given or implied for any development other than Stage 1 works –
and then I cannot explain why it is not until condition 20, but nonetheless, fortunately in condition 20 there is a reference to a plan, which I will come to in a moment –
Plan P34795-0 received by Council on 16th January, 1980 and also the can buy-back centre shown on this plan.
That is the same plan:
All other stages –
to do anything –
require the prior consent of the Council.
Then one sees 21 requires the:
Submission of detailed plans –
which refers in particular to what I might call the “interface” between the operations on the site and the general public in relation to cans, what your Honours see, the reference to “vehicles delivering cans” in the second line.
Conveniently, the very next page, page 25 of the appeal book, has that plan. The date reference is almost illegible but is that which appears to be 15th but presumably is intended to be the 16th. In the box at the bottom just under the word “PROPOSED” there is the date. One sees the drawing number, as referred to in condition 20, P34795-0 in the ‑ ‑ ‑
GUMMOW J: What do you say the date is, Mr Walker?
MR WALKER: If your Honour looks at the word “PROPOSED ‑ ‑ ‑
GUMMOW J: Yes, I see it, but I cannot read it.
MR WALKER: ‑ ‑ ‑ drop down from “SED” directly there is a small box ‑ ‑ ‑
GUMMOW J: What is it saying? Is it saying 18/1/80 is it?
MR WALKER: It actually says 16, I think, although I must say, to my eyes, it appeared to be 15. It is either 15 or 16/1/80 in a box that has the word “DATE” and that obviously refers to the fact that it was received by council on 16 January, which is the reference in condition 20. Whether it is 15 or 16 does not matter. It is clearly the same document. If it reads 15 then it was drawn on the 15th and it was received on the 16th.
Now, that plan, could I remind your Honours to beware of simply reading it as if north was at the top of the page. That is not true. You will see the north indicator about halfway down on the left‑hand side. For later orientation could I simply tell your Honours that Kiora Crescent, to which reference is made in the location description, is in fact off to the bottom left of that sheet? It is not shown. But you will see on this sheet Norrie Street and Loftus Road marked towards the bottom and on the right hand of the plan.
On the plan itself your Honours will see the rotary furnace which is the apparently separate square towards the right. I can tell your Honours that it is a bag house, which is the smaller rectangle to the right of it. Your Honours will see the square and rectangle shaded or hatched, to use the description in condition 20, known as “CAN RECLAMATION STORAGE 1”, “CAN RECLAMATION” and then on the bottom of that, towards Norrie Street, what is called the “CAN BUY-BACK CENTRE”.
If you see the arrow A, which is just to the left of the legend, “LOFTUS ROAD”, and then lift your Honours’ eyes to the middle of the page, you will see the legend “VIEW LOOKING IN DIRECTION OF ARROW ‘A’”. That is for the perspective, which is then the top of this plan on page 25 and the perspective, I hope, makes things more readily understandable for your Honours. You see the bag house with the, I will call them chimney stacks on the right, the rotary furnace to which it is appended, and then the larger roofed areas which are the connected reclamation storage, reclamation and buy-back centre, the buy-back centre being to the extreme left of that perspective.
I should draw to your Honours’ attention that the title of this drawing you will find in the block, as it is called, on the bottom right:
PROPOSED BUILDING LAYOUT
REMELT-YENNORA NORTH, No. 2 CAN RECLAMATION
CRENNAN J: The pollution control, is that connected with the rotary furnace ‑ ‑ ‑
MR WALKER: Yes, your Honour, physically.
CRENNAN J: ‑ ‑ ‑ whatever mechanisms are available for that? Physically, yes.
MR WALKER: Yes. Could I then take your Honours forward in time ‑ we are still before the Environmental Planning and Assessment Act – to the grant of consent for what are called extensions. For that purpose may I take your Honours first to page 34 of the application book. I should say the first one we have just been to is 80/40. This is 80/92. You see that number at the top under the date, 9 April 1980. Again you find a reference to the land by parcel description plus being “bounded by Kiora Crescent, Norrie Street and Loftus Road”. You will see there is a grant of consent for the erection ‑ again there is no point taken that that does not include use ‑
of extensions to the previously approved can reclamation and buy back centre –
and the notion, both linguistically and conceptually, of the previously approved can reclamation and buy back centre will be of some significance to the whole of our argument. Again, there is the emphatic language restricting that which is permitted by this consent in the following two lines:
and the like and no consent is given or implied for any other industrial activity, subject to the following conditions -
in a familiar form. On page 34 I draw to your attention condition 2 for the same tangential purpose as before. There is reference there to more spaces being required on what is called “the site.” It is a little obscure as to exactly what the site is, but it almost certainly extends beyond simply that which is occupied by these buildings, but you see that it is calculated by reference to a formula which turns on the floor area of plans submitted with this application. On page 35, condition 16 has again the emphatic limiting statement requiring prior consent of the council for:
Any future additions to the buildings or occupations –
On page 36, condition 17, to which reference had been made in condition 2 about parking, shows the particular plans had produced the particular requirement of 30 spaces for what is called “that stage” which is Stage 1. There you find at the foot of condition 17 this reference to “the overall development” which your Honours will probably find, if your Honours consider it relevant, to be a reference to far more than just the can reclamation plant.
Condition 18 again requires special attention to matters in relation to what is called the can buy-back centre. Condition 20 refers to “existing car‑parking spaces” recalled up by the earlier consent. Your Honours will see a reference to “the spaces required for Stages 1 and 2”. I am not able, without obscurity, to tell your Honours exactly what that comprehends, but again it is a clear textual indication that this is a consent for what might be called part of an unfolding industrial enterprise, both to be erected and operated. That, of course, does not for a moment qualify or modify the effect of the limits placed by this consent itself and by the law and what it permitted. Condition 21, of course, makes that crystal clear:
No consent is given or implied for any development other than Stage 1 works shown hatched on Plan P34795-0 received by Council on 16th January, 1980 –
That is the same one as I have taken you. It is at page 25 of the application book. I am sorry to confuse your Honours with references. I should note that your Honours will also see that at page 37 of the appeal book, but that is of no moment presently. I will come back to that. That is the same one as your Honours have already seen. The limit of the consent extends, however, to permit what is called “and also the can buy-back centre shown on this plan”.
Now, your Honours could be forgiven for thinking that that is a reference to two plans, and so it is, we submit, ultimately. Again read charitably and in favour of the respondent, it turns out that there was a plan which showed a can buy-back centre as an extension to that which had earlier been approved. Alas, that however is not the one found at page 37, which, as I have already noted, is simply an exact copy of the one at 25.
We have noted this in our written submission. It turns out that it has to be something else by the method to which I will now go. Can I ask your Honours to go to page 42 of the book? This is the building application which happened to be required by condition 15 recorded at page 35. It is the council acceding to the building application at page 42. You see there it is an:
application for permission to add another bay to the rear of the Rotary Furnace Building (being that part of building work shown on Drawing No. 033212 . . . has now been approved, subject to the following conditions –
You see one of those conditions, the first one, is the undoubtedly redundant but still emphatic compliance with the conditions to which I have already drawn your attention of 80/92. While simply on this page before going to page 44, could I draw to your Honours’ attention on page 43 the bottom note at about line 20 on that page, simply to illustrate the specificity with which that which was being approved and that which was not being approved was noted as long back as 1980.
Page 44 is, we submit, quite plainly the plan which answers the description “this plan” where I drew that to your Honours’ attention on page 36 at about line 39. It shows the addition. If you were to compare this with page 25, visually one can see at a glance that there is an addition, particularly to the rear of the rotary furnace.
The legend for the addition includes the words “SLAG DUMP BUILDING”. The legends otherwise “ROTARY FURNACE”, bottom right; “BAG HOUSE” to the right of it; in the middle, “CAN RECLAMATION WAREHOUSE”; below that, “CAN RECLAMATION FACTORY”, so called; and then next to it, forming the quadrilateral, is the “CAN BUY-BACK”.
So that was the state of affairs in relation to the can reclamation plant and its approvals. As I say, then the EP and A Act came into effect – a straddling of the two statutes does not affect the position, as was common ground. Come June 1981 there is a development application made for what I have called in my opening the remelt facility. Could I take your Honours first to page 51 in relation to that to see its description. Perhaps before page 51, take your Honours to page 49. This is the letter of 26 June 1981 from Comalco to the council. They say at line 30:
We wish to proceed with formal application for Development Consent to carry out the construction of a new Remelt Facility –
that is the description, a “new Remelt Facility” –
to be located at our Yennora North site.
I told your Honours earlier there is Yennora North, Yennora South, as you will see on some sheets soon –
We, therefore, enclose the following documentation –
There is the development application form. That starts at 51, there is a fee, there are drawings and those drawings, your Honours see the way in which they are described, “Remelt Yennora North”, et cetera. Again, I am sorry for the council’s – Comalco’s, in this case – error, which can confuse. Your Honours will see the third of those drawings is described as a “Survey Drawing – Lot 23 (DP 18211). That same reference is repeated on page 51, the actual form. That is, we think, an error – an understandable one, from the shape of the documents to which I will take you. It is an error. It should read, we think, “DP 606744”. This is of absolutely no moment. I simply warn your Honours about it because it is one of those glitches in the documents. As it happens, it is on the respondent’s side; it was Comalco’s document.
GLEESON CJ: Mr Walker, the document at page 22, the development consent 80/40 referred to a “Stage 1 of a can reclamation plant”.
MR WALKER: Yes.
GLEESON CJ: This document refers to a “new remelt facility”.
MR WALKER: Yes.
GLEESON CJ: What is the relationship between those two descriptions? Is there a stage II of the can reclamation plant?
MR WALKER: There is certainly a verbal reference to that. I drew that to attention, your Honours will find – there is another reference to stage 1 at page 36, to which I have drawn attention already, in conditions 17 and 21. What I cannot show your Honours is any reference on plans which identify that which is stage 1 or stage II apart from the plan which one finds, for example, at page 25. There is no textual reference which would enable any identification of stage II with the remelt facility.
CRENNAN J: Page 182, I was just going to mention, there is a reference to “Stage II” of the remelt facility.
MR WALKER: Yes.
CRENNAN J: I was just wondering if there is a stage II in relation to the other enterprise. In other words, is there a distinction between the remelt facility and the ‑ ‑ ‑
MR WALKER: The remelt facility did have within itself stages.
CRENNAN J: Its own stages.
MR WALKER: Yes. The EIS, to which I will be coming – environmental impact study which actually talks about the staging by which ‑ ‑ ‑
CRENNAN J: The remelt ‑ ‑ ‑
MR WALKER: ‑ ‑ ‑ there will be a gradual close-down of the old ‑ ‑ ‑
CRENNAN J: Transfer to the new?
MR WALKER: And transfer to and expansion of the new. I do not think the material permits one to say that that is stage II to the stage 1, which is ‑ ‑ ‑
CRENNAN J: AB 22.
MR WALKER: Which is at page 22 in relation to can reclamation plant. There are stages within the remelt facility itself which, as your Honours will see, was a much larger enterprise and the can reclamation plant itself ‑ ‑ ‑
HAYNE J: Stage II is not constituted by what is described as the extension to the previously approved can reclamation?
MR WALKER: It is tempting to say so, your Honour, but at best that is an inference long after the event.
HAYNE J: Yes.
MR WALKER: I do not have textual confirmation of that. I think that is as far as I can take that. Your Honours, I was at page 49 and I had drawn to your Honours’ attention what is an immaterial falsa demonstratio in relation to the Lot 23 reference. Page 50, there is some reference to what I will call “staging” at about line 25 or so. There is the reference to:
the erection of offices and buildings covered by this application are required for the installation of an Aluminium Remelting Facility similar to that presently operating at our Yennora South site.
They were shifting it and improving it, from Yennora South to Yennora North, and in various ways in which they boast in their EIS they were going to improve it from the point of view of pollution in particular –
It is envisaged that eventually the Remelting operation at the Yennora South Site will be phased out and all remelting will take place in the area covered by this application. The benefits of following this route are adequately identified in the Environmental Impact Statement.
Then quite a significant paragraph in relation to the position taken by the respondent nowadays. They then say:
The architecture of the buildings will blend with the recently constructed Can Recycling Plant buildings in Loftus Road –
et cetera. So an understanding of the difference between, as well as the intended relation of, the two quite separately consented developments is indicated on that page 50. The form itself on page 51, could I draw to your attention about line 22, that the “Real Property Description” has in this part, in this form – it says “LOT NO. 23 (PART)” and that is and was perfectly accurate, for reasons to which I shall come.
Again, it continues what we think is the error by referring to the “DP 18211”. It is a very straightforward falsa demonstratio, for reasons to which I will come. Your Honours see that the development here is simply “ALUMINIUM REMELTING FACILITY”. There is a reference at about line 38 to the fact that:
The application is accompanied by-
(a)an environmental impact statement –
and you see the date. Could I take your Honours then to page 54. This is another form. It is a form which is required to be filled out by the person who does the environmental impact statement. Here, at about line 32, you find that for what is called the “New Remelt”, by contrast with what at line 28 you see is called the “Existing Remelt”, that the real property designation is “Lot 23, Deposited Plan 606744” which, we submit, is plainly the correct reference, for reasons to which I will come very soon. I should draw to attention that this EIS author’s form does not refer to that being as part of Lot 23, but the application by the owner did. The existing remelt, to remind your Honours, is that which was on Yennora South.
Could I next take your Honours to the plan attached at appeal book 57. The top of page 57, top right‑hand corner, you see that this is a “COPY OF D.P. 606744”. Towards the right of the centre line at the top you see the designation for Lot 23 in that deposited plan. You see there its area is “4.295 ha” – that is of some significance, for reasons to which I will come. Orienting it differently this time, your Honours will see again “NORRIE ST.” on the right, “KIORA CRES.” on the right underneath Norrie Street, below the indication of two easements, and “LOFTUS ROAD” is on the top of the plan.
Lot 23 is indicated, I can tell your Honours, by what you can probably pick up as faint highlighting. So that where the figure “23” appears there is a kind of square which is formed by the line in the centre of the page, and on the right the “EASEMENT TO DRAIN WATER”, and then an irregular quadrilateral for the rest of Lot 23. Your Honours now know that the can reclamation plant is in that location, in particular.
Could I draw to your attention that the easements shown on the bottom of Lot 23 on the right-hand side are those which are explored in detail in the diagram on the bottom left of that drawing, which of course is not part of the plan otherwise in more detail. While there, there is another reference I need to give you. Your Honours will see below the word “ROAD” where “NELSON ROAD” is shown – Nelson Road is just halfway down. I can tell your Honours, as you will see soon, that that divides north and south. Just below the word “ROAD” there in faint there is the Deposited Plan designation “501841” and that is the one that you will have seen referred to on page 54 at about line 30 twice, and they are references to where the existing remelt was. So the land is different.
Could I then go back to page 55. Your Honours will see oriented by reference to that larger area shown on page 57, you will see on page 55 the Norrie Street, Kiora Crescent, Loftus Road location of what is called the “EXISTING CAN RECLAMATION AREA”, the “EXISTING SLAG STORAGE”, the “EXISTING ROTARY FURNACE AREA” and the “BUY‑BACK FOR CANS”. Those are the legends I have just read to your Honours from those hatchings which go diagonally from lower left to upper right.
The hatchings legend appears just above the block, the draftsman’s block, and the hatching for those existing areas describes existing buildings and plant area, hatching in the opposite direction describes “COVERED SCRAP STORAGE” and “DROSS TREATMENT” area, and your Honours will find that immediately to the right of the can reclamation plant. I should draw to your attention that the car parking is car parking both described as “ADDITIONAL” and “EXISTING” and it straddles that line which corresponds with those easement markings, which is at the bottom of the – well, it is one of the boundaries of Lot 23. So you can see that the car parking actually straddles Lot 23 and the bordering lot. There are perspectives on which I do not need to tarry, at page 56.
The environmental impact statement then starts in the book – could I take your Honours I think first to page 66, which is headed “SUMMARY”. It refers - this is something that accompanied the application – it refers to at line 10:
a proposed new aluminium remelt facility on the present site of Comalco Products, Yennora –
Now, whether that means north or south or north and south together, probably the latter, does not really matter –
The Company has been operating an existing aluminium remelt facility since 1963, and it has now become outdated and inefficient –
et cetera. There is a reference to “scrap aluminium” and “growing demand”. Line 20:
The present development proposal relates to the building of a new modern aluminium remelt facility incorporating the latest technical developments . . . next to the existing can reclamation and rotary furnace complex.
Of course they are all part of the same business enterprise and overall industrial activity, but they are quite separate in terms of an appreciation of what is necessary – or what was permitted by existing consents and what it was necessary to seek new consent for. So this is a remelt facility which is “next to the existing can reclamation and rotary furnace complex”.
Your Honours then see what the various chapters are going to do, including a full description of the proposal. At the foot of that page, line 50 or so, it is concluded:
the proposed new facility would improve present operations, provide better coordination and overall process integration on the site –
No doubt that describes what it turns out the EIS proposed, and the consent authority required, in relation to the processing of dross produced in this new remelt facility in the adjacent existing rotary furnace complex. Far from abolishing distinctions between the two parts of the overall site and process, it actually highlights the distinction. Page 69 ‑ ‑ ‑
CRENNAN J: It is just the one rotary furnace, is it, moved from one location to the other?
MR WALKER: Yes. One of the oddities of this case that is noted in the reasons of Justice Basten is that in fact there is another furnace, but it has all been treated as covered by the consent for this furnace here. But for present purposes, that is in terms of actual operations, there is only one furnace. There were in fact two, but one was used and then one ceased to be used, according to the Court of Appeal’s reasons. It has not been a point taken by us in relation to the consent to use the current rotary furnace, but it is one of those otherwise unaccountable oddities of the regime concerning the site.
Page 69, as I say, in the introduction one sees a description of what is called “a large aluminium semi-fabricating plant at Yennora”. It is a plant that is said to receive “primary aluminium from Bell Bay . . . and scrap aluminium from regional and internal sources”. Within it:
the company operates an aluminium remelt facility. This plant converts scrap aluminium into a form for further processing . . .
Due to increasing scrap generation, including aluminium can reclamation –
one sees how they all relate –
it is forecast that the present remelt facility will be insufficient to cope –
So the can reclamation plant produces some of the feedstock for the remelt, it is producing it at a rate which it is forecast will be beyond the current remelt capacity, that is why they need the new remelt. Line 30:
The Company proposes to process the expected rising quantities of scrap aluminium by the installation of a modern remelt facility on a previously undeveloped site ‑ ‑ ‑
CRENNAN J: Well, you said some of the feedstock. Is some other feedstock being produced elsewhere?
MR WALKER: Your Honour, when we talk about feedstock there is what I will call ingots, produced from melting material – not just cans. There is of course also scrap aluminium from other sources, regional and internal sources. That is finished aluminium, not dross. The point about dross is it is a hazardous waste and its processing is quite different from simply melting finished aluminium. Dross is not feedstock for the remelt. Dross is a by‑product of the remelt.
CRENNAN J: Of the remelt. It is all the paint and detritus and so forth.
MR WALKER: I think it is much more than that, your Honour.
CRENNAN J: Much more than that?
MR WALKER: I think it has to do with the chemistry of doing something in the earth’s atmosphere, which includes oxygen and water of course, when you apply heat.
CRENNAN J: Yes.
MR WALKER: So it produces this…..of aluminium. It is not just the Coca‑Cola logos, if that at all. Page 71, “SCOPE AND OBJECTIVES OF PROPOSAL”, line 10:
The proposed remelt facility is to be located some 550 metres north of the existing remelt operations . . . It will work in conjunction with the adjacent can reclamation and rotary furnace complex –
Quite so that is. There is of course an obvious link industrially and as to proprietorship, but they are, as to land use regulation, being regarded, and properly so, as quite distinct. There is a reference – and this is the one I was trying to think of earlier and I could not remember. At page 71 line 22 there is the reference to “second stage” that I was trying to find when the Chief Justice asked the question. It actually refers there to a “co‑ordinated second stage of development . . . will allow the ultimate closure of the existing remelt facility”. Now, that does not necessary conclude the issue of what is stage 1 and what is stage II in the various places, but that is the other reference I was looking for.
Line 30, your Honours see the reference in this document to the “minimisation of pollution” as being a reason why it ought to be consented to. Page 73, at the foot of the page about line 50, you see again a reference to the industrial integration, commercial relation of these various parts of the apparatus on various parts of the site:
As part of Comalco’s commitment to can recycling, the Company in 1980 erected and commissioned a can reclamation plant and associated rotary furnace facility.
Quite so –
Consistent with this pattern of growth, the Company now proposes to construct a new aluminium remelt facility –
They are related, but different. If you go to the plan at page 74, your Honours are being tested, as it were, with orientations. Could I draw to your attention north is not up in this one. You will find at the foot of that page “YENNORA NORTH” “YENNORA SOUTH” indicated by arrows, “NELSON ROAD” down the middle – that is the split of the site according to the verbal designations.
If your Honours can then orient yourselves by reference to “NORRIE STREET” towards the top of the page on the left, “LOFTUS ROAD” on the extreme left margin, “KIORA CRESCENT” just to the right of the car park area, then your Honours will be able to see, I hope, the legends for the “BUY-BACK CENTRE”, the “CAN RECLAMATION FACTORY”, “WAREHOUSE”, “ROTARY FURNACE” and “SLAG STORAGE” which is thus located in the not rectangular but quadrilateral part of Lot 23 on the top left of that plan on page 74.
Lot 24, by the way, is, as your Honours will recall, a lot upon which some of the car park is located, as I drew to attention earlier. The division between the two lots is indicated by those faint parallel lines that go across the car park designations, to which I drew attention later, that is where those easements were, on the border of Lot 23 and Lot 24. So that the solid area which is shown to the west, that is below the can reclamation plant, those legends from the top “DROSS TREATMENT”, “COVERED SCRAP STORAGE”, “MELTING AND CASTING” in the remelt facility.
Page 75 starts off by referring at line 10 to “The existing Yennora semi-fabricating plant”, that is the overall exercise. About line 20 you see “Nelson Road divides the plant into two sections, known as Yennora North and Yennora South”. Then 3.1.4 is referring to what is called the “Existing Remelt Facility Operations”. I think because of arguments the respondent intends to advance, it is important to note this is manifestly not the can reclamation plant, see the next two lines. “The existing remelt facility –that is not the can reclamation plant – “is located in Yennora South”. We know that the can reclamation plant is in Yennora North. So that is what they are talking about there.
Page 77 there is a flowchart for the process. It is not a large point, but I simply draw it to attention. You do not find any dross coming in from anywhere else there. Page 78 there is a reference to – in the existing remelt there is a reference to the dross – this is about line 20 – “is then cooled and later processed by the rotary furnaces (at the Yennora North site).” So the distinction between the existing remelt facility and the rotary furnace at Yennora North is clear.
Page 81, at the top of the page, 3.1.6 “Proposed partial phasing-out of the existing remelt”. Again, there is a reference to that phasing out being dependent upon the completion of the new remelt facility at Yennora North, about line 12. Your Honours will then see the nature of the proposal in terms of timing in the last two paragraphs of that indented section. At 3.2 “Site Selection Evaluation”; we do not resist. The obvious relation of the different parts of the whole so-called semi-fabricating plant, and you see it in the EIS:
The remelt operation is an integral part of the Yennora semi‑fabricating plant operations and cannot be considered as an individual process to be carried out at a separate site.
On the other hand, the planning regime requires you to designate exactly where you are going to do it and what you are going to do, and the consent authorities require that consents go only as far as their individual terms.
Page 82, the third of the alternative options that had been considered – the one that was favoured – is:
(iii)Build a new remelt facility west –
as I drew to attention on the plan I took your Honours to at page 74 –
of the existing can reclamation and rotary furnace complex –
So the distinction and the relation are clear. Page 82, section 3.3 “Site Description”. It is “rectangular in shape”, so it is that part of Lot 23 to which I have drawn attention several times on the plans. It is “approximately 24,000m2”. It is obviously only part therefore of Lot 23, which is over 4 hectares. “It is located within ‘Yennora North’” et cetera.
Now, page 85, could I next take your Honours to. Your Honours will see at about line 25 in the “Description of Proposed Plant” again a distinction as well as a relation being drawn by reference to the “recently completed and adjacent can reclamation and rotary furnace complex”.
Your Honours, there was one of these glitches in the – in this case it is the company’s documentation. “Site Description” I neglected to draw to your attention on page 82 line 49. There is a reference to “Fig. 3.1”. We cannot find the label 3.1, but we suggest that the company must mean the plan at 74, not least by cause of the reference that you find at the foot of page 73. So it comes straight after the first reference to “Fig. 3.1”, and certainly answers the description. I am sorry about that. It is not of our doing, but it is one of those puzzles in the documents.
Page 85 is a very important part of the EIS. Apart from that comparison, in terms of external appearances, with the existing can reclamation plant, could I draw to your Honours’ attention 3.4.1. This is picked up by condition 4.2 in due course:
For the purpose of dross cooling, storage of scrap aluminium and preparation of the charges for the melting furnaces –
the charges is that which goes in –
a separate covered building . . .
The recovered dross will be processed by the nearby existing rotary furnaces.
That was the proposal on behalf of the company in the environmental impact statement that accompanied the application. It is picked up in the approval to which I will come. For what it is worth, at page 86 there are some elevations, if your Honours find that of assistance. There is a line dividing existing and proposed by which you can connect by notionally putting down to the left the “EXISTING NORTH ELEVATION” at the top of the page with the “ADDITIONAL BUILDINGS – NORTH ELEVATION” at the bottom of the page. That is what those almost illegible words mean – arrow pointing left, “EXISTING”– arrow pointing right, “PROPOSED” which you will find at the right‑hand side of the top drawing and the left‑hand side of the bottom drawing.
Page 88 - these are all referring to what is proposed, not existing – 3.4.2.2, in the middle of the page, “Melting furnaces”. You will see at line 30 that the process described includes what is called them being “de‑drossed” and an advantage perceived in relation to that.
GUMMOW J: What are we going to derive from all of this, Mr Walker?
MR WALKER: What you are going to derive is that there is not what the respondent proposes, namely, by reason of the integration of industrial processes an abolition of the express limits imposed by the 1980 consent on what may go into the rotary furnace. All that was added by 1981 was that the dross from the 1981 new remelt facility had to go into the rotary furnace and that was all that was added and that dross from it goes into the rotary furnace, otherwise cans go into the rotary furnace and those are the limits of the processes permitted by the 1980 consent and the 1981 consent and they do not permit dross to be brought up in unlimited quantities from anywhere else.
HAYNE J: I am sorry, you will have to state it again. Could you state those propositions again so that I can understand them better than I now do?
MR WALKER: Justice Gummow asked me ‑ ‑ ‑
HAYNE J: I understand the question. It is the proposition that I want to have restated.
MR WALKER: Yes. Upfront may I say as to the propositions that a deal of these anticipate argument against us. It is our positive assertion, our positive case, that neither the 1980 consents nor the 1981 consent permit dross from Point Henry or anywhere else out of Yennora to be put into the rotary furnace, the erection and use of which is regulated by the 1980 consent.
In the course of defending that assertion against a species of answer by the respondent we have been forced to direct our attention to the proposition which they advance that, properly understood, the configuration of this site in its various parts and the processes regulated by the two consents, the 1980 and 1981 consents, yield the result that there are no limits, express or implied, on the dross that may be brought to Yennora to be processed in the rotary furnace in the can reclamation plant and they do so by, among other methods which I do not wish traversed here and will leave them to advance, they do so by drawing to attention what I will call the quality of integration of process and plant at this overall site.
I have been trying, by reference to this material, to show, well, of course, the processes are related, of course there are commercial and industrial process connections but as to planning regime and planning regulation the whole of the stories, application, consent and statute, show that all that is permitted on the particular parts of this overall site are those things which are referred to in the 1980 and 1981 consents. At the base of all of that is our fundamental proposition with which we do not think there is real contest but which is crucial, that consents relate to designated pieces of land.
CRENNAN J: Was Lot 23 covered by the earlier consents?
MR WALKER: Yes. It is covered in this sense, that Lot 23 was part of the land in respect of which the consent was sought and given and on Lot 23, in particular locations as shown on the plan, there were various things to be erected or constructed, car parking, buildings, apparatus. That does not mean, of course, that Lot 23 is, as it were, a planning Alsatia once you have the consent. You cannot do whatever you like on Lot 23 so long as it answers that description, you have to do that which the consent required, to build the plant in that position, build it in this particular form, operate in this particular way, put the car park in a particular location. Your Honours will recall I have referred to the conditions which require the location and configuration of, amongst other things, the buildings and the car parking to be designated.
CRENNAN J: Is not one problem, though, that the sequence of these consents is all about the expansion of the activities and this forecasting, clearly, of a much expanded production rate?
MR WALKER: Yes.
CRENNAN J: How is it all going to work if there is the confinement to only using dross that is generated on the site? In other words, does not ‑ ‑ ‑
MR WALKER: To the contrary, your Honour. That is a reason to exclude a reading of either of the consents to contemplate dross from being brought in from elsewhere. That would test capacity even more. We have an existing can reclamation plant with rotary furnace. It is into the rotary furnace that dross must go. It cannot go into the remelt facility directly. It is produced by the remelt facility. You have to do something with that which you get by de‑drossing. So, you de‑dross the remelt facility, you have to do something with it. The company proposed, the council required the thing to be done with the dross was to charge it into the adjacent rotary furnace in the can reclamation plant.
CRENNAN J: Which we know has all the pollution controls attached to it and so forth.
MR WALKER: Exactly. It means that the scale of pollution and the question of handling the hazardous waste has all been contained on the overall site for which we have two - leaving aside the extension – relevant consents. Now, dross from elsewhere does not get addressed in any of these consents. The EIS does not consider dross from elsewhere, it does not consider the scale of pollution, it does not consider the handling question at all.
HAYNE J: I am sorry, you will have to go back several stages because I am struggling with the premise.
MR WALKER: I am sorry. Yes, your Honour.
HAYNE J: A premise, perhaps the premise for your argument is, as I have noted it, that neither the 80 nor the 81 consent permits dross, which I have described, from offsite to be put into the rotary furnace, the erection and use of which was regulated by the 80 consent. That is, a premise, perhaps the premise, for the argument.
MR WALKER: Yes. It is perhaps really the conclusion, your Honour, yes.
HAYNE J: What is it in the 80 consent that speaks to the subject of dross at all?
MR WALKER: Nothing. We do not take that point.
HAYNE J: It is not a question of taking points or no, at least, what is it that is the legislative assumption that is made when significance is attached to the premise? You may come to that ultimately in your argument and if it is more convenient then do so.
MR WALKER: No, I am happy to address that now, your Honour.
CRENNAN J: Perhaps factor this in. You seem to be suggesting – I may have it wrong – that the earlier consents only allow the rotary furnace to be used in relation to can reclamation.
MR WALKER: Yes.
CRENNAN J: Is that how you are getting to the point that ‑ ‑ ‑
MR WALKER: Absolutely. Very much so. That is, there is no consideration of, no application for and no consent given to the can reclamation plant being anything but a can reclamation plant. The rotary furnace is part of the can reclamation plant.
CRENNAN J: But the rotary furnace can do other things?
MR WALKER: It can do other things.
CRENNAN J: Or it gets moved to the expanded site?
MR WALKER: No, it does not. Your Honour has mistaken it. There is no physical movement at all. No, no. It is just adjacent. As I have shown on the plans there is ‑ ‑ ‑
CRENNAN J: Yes. That is true.
MR WALKER: Dross gets moved from the new plant, the new remelt, physically moved to the rotary furnace ‑ ‑ ‑
CRENNAN J: Yes, but you want to pin the use of the rotary furnace back to the old consents?
MR WALKER: No, it is not an old consent. It is an extant consent.
CRENNAN J: The original consent?
MR WALKER: It is an extant consent.
CRENNAN J: Yes.
MR WALKER: No one says that it does not operate. The only question is, does it limit.
CRENNAN J: But you are saying that the extant consents limit the use of the rotary furnace to can reclamation.
MR WALKER: Yes.
CRENNAN J: You cannot use it for any of the other purposes for which it could be used.
MR WALKER: When say your Honour means “could” you are referring to the industrial physical capacity of the apparatus?
CRENNAN J: Yes.
MR WALKER: That is exactly so. That is that the can reclamation plant is not the subject of a consent that permits other substances than those referred to in its consent to be reclaimed in it. It could have, and physically, as your Honour points out, a rotary furnace is a rotary furnace, but it did not. My learned friends do not actually point to anything, saying, well, here is the word that says, “This is a can reclamation plant and Point Henry dross processing plant”. They do not point to anything like that. That leaves Justice Hayne’s question to which I must return.
GLEESON CJ: Mr Walker, I just want to clear up a matter of fact. What is the industrial purpose of putting dross from Point Henry or anywhere into the furnace?
MR WALKER: In order to (a) produce aluminium and (b) get rid of a hazardous waste.
GLEESON CJ: So it is twofold?
MR WALKER: Yes.
GLEESON CJ: Getting rid of something that you want to get rid of.
MR WALKER: And it happens to produce that which you want.
GLEESON CJ: Yes.
MR WALKER: It is a salt of aluminium. You can eventually produce out of its processing aluminium, obviously, but by a process which itself is polluting and needs to be controlled by (a) the conditions of your development consent which as your Honours can see in 1980 were not all that great in relation to that pollution but, (b) by the pollution licensing system which operates in parallel is the other part of the case. To put it another way, in answer to the Chief Justice’s question, what else would one do except build a large very dangerous pile which would constitute an enormous nuisance. In other words, you have to get rid of it and actually you can produce what you are in business to produce out of it.
The critical part of our case, be they premises or conclusions, is that in 1980 there was no application for the erection or use of a plant to deal with offsite dross and offsite dross is not, as it were, a mere detail, it is chemically and commercially significant. What was there an application for? It was for a can reclamation plant, including, and your Honours will remember the expression, “consisting of, among other things, a rotary furnace”. It is express, not implied, it is clear, not obscure, that those words and that administrative action restricts the rotary furnace to can reclamation.
Then I come to the difficulty that Justice Hayne draws to attention. Nothing is said in that for all the reasons I have just put about Point Henry dross, about Yennora dross. In 1981 a condition was imposed by the same consent authority in a new application for a different part of the site adjacent to the then existing can reclamation plant which required, as we shall see, that the dross from the new remelt process be put into the rotary furnace in the adjacent can reclamation plant.
As it happens, we submit that that is pursuant to a statutory power to impose conditions, whether or not those conditions relate to the land for which development consent is being sought. Your Honours will be very familiar, say in mining cases, to a condition being imposed on the right to take coal from Blackacre, that works be performed on and sometimes purchase be made of neighbouring Whiteacre, for obvious reasons, buffers and the like, and it is in the same way we say that this was intended.
If there is a puzzle it is a puzzle which has as another answer that everything has been illegal since the remelt facility sent its first dross into the rotary furnace but we, the people who are blowing the whistle, are not blowing the whistle on that illegality. We say, and we are entitled to say, whatever else the problems with your 1980 consent, which may mean that everything you were doing was illegal – we are not saying that – no one is saying that – whatever else is, we say it does not permit you to process Point Henry dross there.
GLEESON CJ: This may be related to the question Justice Hayne is raising, but it may be one thing to say that which you sought consent for in 1981 was an activity that was going to produce some hazardous waste, namely, dross. One of the terms on which they gave you that consent involved a condition as to how you were to get rid of the hazardous waste that you were producing in that activity you are asking them in 1981 to consent to, but it does not necessarily follow from that, does it, that the only dross you could put into the rotary furnace for which consent was given in 1980 was dross produced from Yennora?
MR WALKER: It does not follow from that, it follows from the 1980 consent.
GLEESON CJ: What part of the 1980 consent?
MR WALKER: The can reclamation plant.
GLEESON CJ: I see, so it follows from the fact that this activity is described by use of that expression “can reclamation” that you cannot engage in what I might call disposal of waste from other sites.
MR WALKER: That is right.
HAYNE J: It is can reclamation, not by‑product recycling.
MR WALKER: Exactly, and in particular, it is not a national centre for by‑product recycling and it does follow from the description of what it was – this is about pollution. Could I take your Honours to pages 108 and 109. This is dross, “Generation and Disposal of Solid Waste”. By the way, this is about the proposed plant. The relevant heading is way back at 104, line 48. You will see “will be” used throughout these passages. In 4.3.1:
The rate of dross formation will be significantly reduced –
that is by the comparison of old and new –
in the new remelt plant –
It is a more controlled and covered process, so there is less of the chemical reaction to produce dross. At the top of page 109, line 10:
It is therefore anticipated that the volume of slag and bag house dust generated from dross treatment –
that is the dangerous by‑product of putting dross into a rotary furnace –
in the adjacent rotary furnace complex will remain at current levels.
So you have can reclamation, which is producing slag and bag house dust, and you have Yennora dross producing slag and bag house dust and they assure the consent authority that the dross which is as a result of greater efficiency going to be produced at a lesser rate in the new remelt facility to go into the rotary furnace enables environmental assessment of this proposal to go ahead on the basis that there will not be appreciable increase.
Now, of course, there would be if you are going to bring stuff up from Point Henry in uncontrolled quantities, but what they are saying is there will not be. At the top of page 109:
the total volume of dross produced will remain at current levels.
That is from the total plant remelt capacity being increased. So even though we are going to have a bigger remelt plant but it is going to be a better one from the point of view of dross production, less dross. None of that would make any sense if this was going to produce a consent which contemplated that dross not coming from Yennora remelt but from some other process at another place could be put into the can reclamation plant.
HEYDON J: I thought your argument was that it was impermissible to look at these documents. Do you not have to look at the two development consents and look for any document incorporated in them and if you cannot find any such document you ignore them?
MR WALKER: Yes.
HEYDON J: Is the EIS incorporated into the 1981 consent? It obviously ‑ ‑ ‑
MR WALKER: Yes, it is by dint of the condition which your Honours find at page 151. May I come to that when I come to the whole of the consent?
HEYDON J: Certainly, yes.
MR WALKER: That is the answer to Justice Heydon’s question.
GUMMOW J: I am sorry, whereabouts on 151?
MR WALKER: Condition 19, line 12 and following, your Honour. That is, it is not possible to understand those items without understanding the context in which they appear. They are the conclusion in relation to how a process is to be handled and that conclusion was reached on the basis of, amongst other things, the industrial pollution considerations that you find at 108 and 109. In terms of environmental assessment, the question was this, this is a process that will produce dross. Dross is something that regulators have to be concerned about. What is going to happen with the dross? How much dross will there be?
All of that is addressed and consent is given to the new remelt facility on the basis that its dross goes into the rotary furnace next door and the consideration is given to the pollution that that will produce, and its quantities, all of which is antithetical to the notion that either the 1980 consent by a mode of silence which has this fallacious default position of that which is not prohibited is permitted, all the 1981 consent by a form of legal alchemy which is not explained has removed the restriction by express description of what goes into the can reclamation plant on dross, or anything else, for that matter, being put into it from anywhere else.
The only addition to what goes into the rotary furnace is that which is required by law under the 1981 consent for the remelt facility, leaving aside the anomaly as to whether that did in law permit that to happen, because it is not an anomaly of which we seek to take advantage and could only hurt the respondent’s position rather than help it. We are left, then, with the text of the 1980 consent which says – it gives no permission for Point Henry dross to be processed, and the text of the 1981 consent which talks about dross, but highly specifically and for good substantial reason, restricting it to that produced at Yennora.
GUMMOW J: The bottom line is that you want an injunction which appears from page 2?
MR WALKER: Yes. We say, with the open standing we have in New South Wales, they must not process Point Henry dross in this plant.
GUMMOW J: Other than aluminium dross produced by the respondent’s use of the premises?
MR WALKER: That is right. The context in relation to environmental impact, which produces the conclusions as to the treatment of dross which are then explicitly referred to in the condition of consent, of which I have given advance notice, continues on pages 112 and following under the heading of, “ASSESSMENT OF ENVIRONMENTAL IMPACT”. At the foot of page 113 there is 5.1.3, “Impacts During the Operation Phase” and at the foot of page 114 one sees, and understandably so, a concern with the “volume of dross generated”. One sees at page 115, the second paragraph, about line 20, an assurance:
There will be no new raw materials or processed products resulting from the proposed remelt facility -
which would be a rather hollow, indeed rather deceptive proposition if it was intended to be read as including the understanding, of course, “But we can get dross from anywhere in any quantity, offsite”.
Now, can I then take your Honours to the 1981 consent which I stress was granted in response to the application which was accompanied by the environmental impact statement to which I have been making reference. It starts at page 148. That is a controversial statement. In the Court of Appeal it was held it starts at page 149. That is wrong.
Page 148 is described, as we understand it, by the argument against us as a mere covering letter. That is wrong. It reproduces almost verbatim that which is required by form 7 in the regulation, stipulating the determination of a development application.
GUMMOW J: Anyhow, it says “notice is hereby given”.
MR WALKER: Yes. There is no question – whether that is politely or letterheaded so as to appear as a covering letter it is not a covering letter in terms of being extraneous to the administrative process. It is the administrative process which is no doubt why it refers to what starts at page 149 as “SCHEDULE ‘A’” – “attached” – which one then sees at the top of page 149. It is a frank error for the Court of Appeal to have seen 148 as somehow to be put to one side as not that which was required by and being done under the statute.
HEYDON J: You seem to be very excited about this.
GUMMOW J: Yes, you seem to be.
HEYDON J: What is exciting about page 148?
GUMMOW J: What is the great wickedness that has come from this error?
MR WALKER: Your Honour, in particular, there is at line 11 a reference to “Development Application No. 315” which is required by law to be in the notice. If the law requires nice distinctions about what is and is not referred to in a document to which one may have recourse in understanding it then there is the express reference to “Development Application No. 315”, which describes the remelt facility and is accompanied by the EIS. I would ask your Honours to forgive me for inappropriate enthusiasm.
GUMMOW J: It was a touch of…..
MR WALKER: That is the source of it. We are touchy, sensitive about the notion that the development application is some strange, extraneous, foreign thing to an understanding of the consent. As your Honours will appreciate from the preceding case law there is reason for our sensitivity in that regard.
Now, the schedule repeats – so the letter at page 148, line 18:
notice is hereby given of the determination by the Council . . . as follows . . .
The development application has been determined by granting of consent subject to the conditions specified in the attached Schedule “A”.
Then page 149, about line 8:
THE COUNCIL . . . HEREBY GRANTS CONSENT for an aluminium smelting facility generally in accordance with plans submitted to Council on 26th June, 1981.
Those are obviously therefore documents called up by this. Then there is a reference to – again, you will find condition 2, the parking obviously refers to an overall exercise. Page 151, condition 17, you have this requirement to do that which had been promised in the proposal, as your Honours will recall, namely to make it look like the existing can reclamation centre, then in 19:
Disposal of liquid effluents and solid wastes –
and your Honours have seen the EIS discussion of that –
being strictly in conformity with the details set out in items 4.2 and 4.3 of the [EIS] –
Hence the need to understand those items in the context in which they appear. Those appear in a context which utterly precludes the notion of foreign dross being brought on in unlimited quantities to be processed in the adjacent rotary furnace. They are addressing and addressing only Yennora dross, furthermore, in a context that is said is not going to be worse than it presently is.
HAYNE J: Along the lines perhaps of the old Part A statement that there is no present intention to downsize the staff. “It is anticipated that”.
MR WALKER: Your Honour, no one could accuse after all these years Comalco of the dubious sincerity of some of those statements. However ‑ ‑ ‑
HAYNE J: The point is this is for an aluminium remelting facility.
MR WALKER: Yes, its dross goes into the rotary furnace next door, so that is what it says. No one disputes that; that is common ground. Its dross must go there. Its dross cannot be sent, for example, to Victoria. That would be illegal. The question is: can Victorian or any other dross be sent to the adjacent rotary furnace? The 1980 consent did not say it could and the 1981 consent, not surprisingly, has nothing to do with that. We stress that which is not permitted is prohibited. It is not that which is not prohibited is permitted.
GUMMOW J: Where do we actually find that proposition in…..statutory form or a legally compulsory form? It is that which founds the injunction actually.
MR WALKER: Yes, it is. In the attached extracts from the Environmental Planning and Assessment Act with our submissions, it is section 76. As I say, the numberings have all changed over the years, but it is section 76 and that is picked up then ‑ ‑ ‑
GLEESON CJ: Your sensitivity about the document at page 148 presumably arises because in paragraphs 40, 41 and 42 of the reasons of the Court of Appeal, they said that the primary judge was in error in taking account of the reference to the development application.
MR WALKER: Yes, that is right, your Honour.
GLEESON CJ: They said it was wrong in principle for him to look at the development application in construing the consent.
MR WALKER: That is right, yes. That obviously is reasoning that says that letter is not the consent and it is in fact the statutory notice, form 7. Could I while in the statute take your Honours to section 92:
Notice of a determination under section 91 shall be given to the applicant in the prescribed form and manner.
In the attached extracts in the print from the regulation, page 1131, you will find clause 44 of the regulation which prescribes for that purpose form 7, and in the same printed extracts at page 1151 ‑ ‑ ‑
GUMMOW J: You are going too fast, Mr Walker.
MR WALKER: I am sorry, your Honour. So from section 92 to the regulation in the print, it is page 1131, clause 44. There it is form 7. Form 7 is found on page 1151 where, apart from notes (1) and (2), you will find the language that is found on page 148 of the appeal book.
HAYNE J: Just back at 76, can you at some point provide, please, those parts of the Act that define “development” and those provisions that would make this form of this Act relevant to the permit that was given under the Local Government Act so that we can follow the legislative chain through and onwards to today.
MR WALKER: Yes. Would your Honours permit me to do that by a bundle? We had some of that material for the special leave application. I hope it can be retrieved quickly, but it may be that I cannot do that today. Would your Honours like that to be restricted to New South Wales?
HAYNE J: I need to understand the legislative premise that you assume (a), for example, that development includes use, and I assume it does.
MR WALKER: Yes. This is not intended, with great respect, to be in any degree cavilling with what Justice Hayne has asked, but I should note it is of course common ground and the pleadings record that the processing of dross from Point Henry at Yennora was an activity that required development consent. That is explicitly admitted. I will come to that in due course. It is also common ground legally that the planning regime is such that they required consent, that the law said to do something without consent granted is unlawful, that the law said an injunction may be granted to restrain that unlawfulness continuing.
GLEESON CJ: “Development” means any use of land for what it is not presently being used, does it not?
MR WALKER: It includes just that, yes.
GLEESON CJ: As distinct from building applications.
MR WALKER: Yes.
GLEESON CJ: The word “development” is sometimes commercially used in the sense that refers to building.
MR WALKER: It actually comprehends both, your Honour. It is very broad and one of the most important words in the very broad definition is, as the Chief Justice pointed out, “use”. That common ground as to the planning regime generally and as it applied to processing dross from Point Henry, of course is reflected in the passages to which I have drawn your Honours’ attention in each of the consents in question where the consent authority says, “No like or other consent is implied for any other activity than that which is set out here”. So, notwithstanding the way in which the first question is stated in the written submissions against us, it is in fact common ground that that which is not permitted is prohibited in the context of this case.
GLEESON CJ: The reasoning against you, as I understand it, is contained in paragraphs 43 to 46 of the heading “Construction of consent” and it seemed, rightly or wrongly, to turn upon a search for a condition in the 1980 consent about source of feedstock. It is said as a matter of construction the condition is not there. How does that relate to the argument you are now on, that is to say, that it is an error to say that what is not prohibited is permitted?
MR WALKER: It relates only in this sense, that it is the determination, we say wrongly, of that which is permitted. One interprets the consent to find out what is permitted. However, one of the errors of the approach taken against us is that it permits silence to do work in relation to an industrial process of environmental significance. It allows silence to do work which is at odds with the proposition upon which we apprehend everyone agrees, including the Court of Appeal judges, namely that which is not permitted is prohibited.
GLEESON CJ: The essence of the Court of Appeal’s reasoning in those paragraphs appears to be that it was not of concern to the council what the source of the feedstock of the rotary furnace was going to be.
MR WALKER: That of course ironically is a species of error which is not restricted to the construing of development consents but goes into a number of other areas of courts construing documents. It is not a search for what worried council, either officers or councillors. It is not a search for their varying degrees of enthusiasm or not for either the enterprise or for control of pollution.
It is at the end of the day, as Justice Heydon has reminded me to note, simply understanding what the printed words mean. The printed words are, like all printed words of legal effect, in a context. That is how they derive their meaning. The law in question in relation to interpretation therefore requires attention to be paid to that which is legitimate and that which is illegitimate to be taken into account under the overall banner context. Clearly enough, one takes into account in construing a consent what the land register will tell you about the deposited plan and the cadastral boundaries of the land in question. There is something extraneous. You have to go to a land register to know where it is.
There is no difficulty with that and no one would ever dream of saying, “I’m not given a cadastral survey in this development consent. This might apply anywhere. How would you know?” The answer is because in context there is a reference to a deposited plan and the context of our legal culture in New South Wales is that one goes off and finds where that is.
GLEESON CJ: But the issue formulated by the Court of Appeal appears at page 229, paragraph 46, does it not? That is, you must establish that it was an implied condition of the consent to the erection and use of the rotary furnace – that is the 1980 consent – that the feedstock for the furnace was limited in the manner described.
MR WALKER: Your Honours, we say two things about that. If we had to do that we can, but we do not have to do that. That is a significant shift away from the proper way of approaching the interpretation of a condition where it is agreed that that which is not permitted is prohibited. One simply looks at what is permitted. It is not a matter of finding an implied condition restricting feedstock; it is a matter first of understanding what has been permitted by this consent. What was permitted by this consent was a can reclamation plant.
The word “can” cannot be disregarded as if it did not describe that which was being reclaimed by the apparatus consisting of, among other things, the rotary furnace. Thus, for example, if someone were to arrive with many truckloads of industrial offcuts, it would not be within the permission for that to be put into the rotary furnace even though, as Justice Crennan correctly points out, the rotary furnace would swallow that up as well as it could swallow up cans.
GUMMOW J: Does the structure of the Court of Appeal’s judgment disclose any starting point in section 76(2) of the statute? I do not think it does.
MR WALKER: I do not think it does but I would, with great respect, suggest that is not a criticism because of the way in which the pleadings fell out. Could I take your Honours to that.
GUMMOW J: I am just trying to find any explanation for why the issue is framed as it was at paragraph 46.
MR WALKER: I cannot help your Honour. I was not below. If there is an answer I should give after further inquiry, I will add to that.
GUMMOW J: Maybe if you read 76(2) you would not immediately go on to frame the issue the way it is framed at 46.
MR WALKER: No. It ought to be framed as: what does the consent permit? All else is prohibited.
GUMMOW J: But the way it was thrown up in the Court of Appeal is a product of the pleadings, is it?
MR WALKER: In other words, there was assumption about what I have called the common ground, namely that which is not permitted is prohibited. Could I take your Honours to the points of claim.
GUMMOW J: There were separate questions.
MR WALKER: I am reminded by Mr Tomasetti, before I go to the pleadings, page 215 in paragraph 10, the challenge by my client was said to give rise to two questions and the first of them is framed, in our respectful submission, as it ought to have remained framed. “Do the consents permit?” That is how it should have been.
GLEESON CJ: You can see this going back to the way the primary judge put it at pages 190 and 191. The parties sought to identify the issues and there is exactly the same kind of departure between the respective formulations, as Justice Hayne pointed out, we still have.
MR WALKER: Yes, that is right.
GLEESON CJ: Your side said, “Can they lawfully do this?”, and your opponents said, “Does the development consent prohibit the use?”
MR WALKER: In our submission, that language is the clue to how the controversy ought to be determined. Consents do not prohibit; the law prohibits. A consent lists conditionally that prohibition and it is conditional, among other things, on the limits of the consent as to description of what is permitted as well as to the manner in which it is to be carried out being observed – see section 76. There is a linguistic curiosity about talking about consents prohibiting. No doubt it is meant to be an ellipsis for what does the law prohibit in light of the extent of this consent.
GUMMOW J: The question is does the consent lift the prohibition, or does it lift the prohibition subject to a further imposition of a condition?
MR WALKER: That is right. That of course is a very common form of ‑ ‑ ‑
GUMMOW J: That traces the language of 76(2).
MR WALKER: That is a very familiar form, as one sees from the provisions as they were then, section 91. Under section 91(1)(a) there may be conditions. Under subsection (3) conditions may be imposed for certain purposes if prerequisites are true of the condition. Your Honours see that it can relate to any matter referred to in section 90(1), which is extremely broad. One sees a trace of that on page 63 of that print, (q) “the circumstances of the case”. One sees the repetition of the notion of “land to which the development application relates” in section 91(3)(b), (c), and you see in paragraph (f) there is a reference to “the carrying out of works” on land other than the “land to which the application relates”.
GLEESON CJ: The primary judge who gave an ex tempore judgment crystallised the issue on page 200 in paragraph 42.
MR WALKER: Yes. In our submission, both the statement of the problem and the answer that his Honour gives in paragraph 42 on page 200 were and remain correct. Your Honours, I was about to take you to the pleading. Starting at page 262, the amended points of claim, at paragraphs 12 and 13, your Honours will see allegations about what the law required in relation to the processing of dross from Point Henry. If your Honours go to page 271 in the defence, paragraph 7, about line 40 says the second respondent:
(b)admits that the processing of Point Henry dross is a use of the Yennora facility which requires development consent –
Both cases, Justice Pain’s case and Justice Lloyd’s case, were before the Court of Appeal which dealt with them together. The pleadings I have just taken you to are pleadings in Justice Pain’s case which follow Justice Lloyd’s case. Those pleadings refer to Justice Lloyd’s judgment.
GLEESON CJ: It is Justice Pain’s case that is the subject of the special leave application?
MR WALKER: Yes. Justice Pain’s case has the relation I mentioned in opening to the appeal, namely, if and only if we win the appeal, then the question arises as to whether her Honour was right or wrong to hold that the lack of development consent to the processing of Point Henry dross at Yennora prevented there being a licence under the Protection of the Environment Operations Act. The Court of Appeal reasoned that it would so prevent. However, for reasons to which I will come very briefly in conclusion, the opposite outcome followed, not least because we lost on the point about development consent.
Your Honours, in fact may I conclude then, in supplementation of what appears in our written submission, our argument about the appeal as follows. The case law to which reference has been made and to which I do not wish to take your Honours in address both in the Court of Appeal and in the parties’ written submissions first must be read so as to consider its application or any principle to be gathered from it in the particular context of, for the remelt facility, the requirements to which we have referred in our written submissions, namely that there be a register kept - section 104 of the Environmental Planning and Assessment Act – which will include development applications and consents.
It also is to be read in light of what one sees from the actual record of both the 1980 and 1981 consents, that is both the Environmental Planning and Assessment Act and the Local Government Act consents in this case, where there is quite specific reference to plans – everyone agrees they have to be looked at – and there are specific references – that is in both there are references to plans – to the EIS in the condition of the 1981 consent.
In our submission, any law supposedly to be taken from that case law which would prevent recourse to the application which is now held in a register with the consent in order to understand what the consent permits is one which would be self‑defeating. That case law does derive from a time when it, in our submission, bore a rather closer resemblance to this Court’s approach to the construing of both statutes and contracts as it occurred then rather than as it is understood today.
There is, in our submission, quite plainly a concern that there ought not to be factual mystery and thus regulatory obscurity inflicted on people who may come to own land or occupy land covered by an old consent in that case law, a concern that they must not be required, as it were, at peril of committing an offence, to understand what one can derive from fossicking around in old council files. That is not a concern in particular for the 1981 consent here. There is a register which must be kept and publicly available, not least of course because that which is prohibited by law and conditionally permitted to be done was intended by the reforms introduced in 1979 to be policed, among other things, by open standing given to anybody with the right to seek an injunction.
Under clause 50 of the regulation in the print, 1133, 1134, one will see the detailed prescription of what that register must contain. That is an example of the way in which administrative arrangements can be made so as to detract from, we would submit abolish, the force of the concern underlying the older case law, namely that the development consent should be the one and only document to which recourse may be had for fear that if one can have recourse to something else, confusion and obscurity would result.
In our submission, no confusion, no obscurity emerges, for example, in this case from the reference in the 1981 consent to the EIS items. That was done for convenience and, in our submission, has the result that we have argued for, as I have taken your Honours to those parts of those documents. It is no more remarkable than the references required by both 1980 and 1981 consents to designated plans with dates and draftsmen’s numbers, which also of course must be understood in order to know whether the building, for example, is in the right place and has the right dimensions.
It is for those reasons, in our submission, that there were no relevant inhibitions on referring to the material to which I have taken your Honours which did produce the outcome in the Court of Appeal. The Court of Appeal ought to have taken into account the context to which we have referred in finding quite clearly that nothing in 1980 or 1981 permitted Point Henry dross to be processed in the Yennora rotary furnace. Your Honours, can I very briefly, again somewhat in ‑ ‑ ‑
GUMMOW J: Just before you do that, Mr Walker, am I right in thinking that all the documents you referred us to are documents that were publicly available?
MR WALKER: Yes. Your Honours, we have in our written submissions in‑chief in paragraph 4 identified why we ought to succeed if special leave were granted in the licence case and your Honours were to look at the merits of that argument.
GLEESON CJ: Part 4?
MR WALKER: Paragraph 4 of our written submissions in‑chief. We simply ask was Justice Basten right in paragraphs 82 and 85. There are a lot of other paragraphs concerning this part of the case in Justice Basten’s reasoning but they have error in relation to matters which were neither in an evidentiary way nor as to issues before the Court of Appeal. They may be summarised as follows. If I can take your Honours to page 238, paragraph 69, his Honour refers to uncertainties when he sets about referring to the issues presented, and your Honours will note at line 49, issues presented “in terms about which no complaint was made in this Court”, including ‑ my learned friend is ‑ ‑ ‑
GLEESON CJ: I understand you are moving on to the application for special leave?
MR WALKER: I have just moved on to it, yes. Do I need a direction from your Honours in relation to that?
GLEESON CJ: No, go ahead.
MR WALKER: Now, those uncertainties were those which have been explored by his Honour from paragraph 55 on page 233 right to paragraph 68 on 238. I am not going to go to them in detail. They involved his Honour looking to a printed form of a so‑called “Notice of variation of licence” and examining and drawing inferences from double underlining, underlining and highlighting, which had been said by those who prepared the document to indicate that which was being amended, et cetera, et cetera, but there was no appeal on the proposition that her Honour had erred by finding that there had been a purported variation. That much is shown by the pleadings to which reference is made in our written submission. In particular, could I take your Honours to the pleading at page 263, paragraph 7:
the Second Respondent applied for an amendment to its environment protection licence in order to process dross from its Point Henry facility –
and the “Particulars” which quoted from evidence before Justice Pain:
sought to include a new scheduled activity being a waste facility that involved “waste storage, transfer, separating or processing” and to amend or delete –
what was existing –
condition L5.1 to allow the acceptance and use of dross from the Point Henry facility at Yennora in the rotary furnace.
There is also a pleading in paragraph 8 of a purported variation to that effect. The pleading back to those paragraphs can be found on page 268 in paragraph 4 - paragraph 7 was simply “admitted”. In paragraph 5 there was a more extended answer which included an admission to vary the licence. There is a difference of no materiality with any current explanation in relation to a date, and then there is a reference to a variation – subparagraph 5(c) at line 40 and thereabouts – to permit the processing of dross.
So in fact it was not an issue between the parties at trial that there had been an application to vary the licence to permit dross and that it had been successful, and yet those pages that I have just referred to in Justice Basten’s reasons create what he called uncertainties and he is not satisfied that there was any evidence, he said, that there had been such a variation granted.
Now, section 73 of the Constitution means that I cannot show your Honours material which was before Justice Pain but not before the Court of Appeal. It suffices to say there was no issue before the Court of Appeal about the seeking and granting of a variation to that effect. In one sense, one can put those pages to one side, even though they seem to have had the effect that his Honour treats the licence case as somehow based upon a false premise.
His Honour then in paragraph 69, as I say, notes that the parties were content to proceed upon the basis, which seemed good to them and which had solid foundation in the pleadings and the lack of any issue in the notice of appeal, that the question was whether sections 50 and 58 of the Protection of the Environment Operations Act combined to prevent the variation from being effectively granted.
Your Honours have seen the written argument about that. It is very simply stated. The provisions are set out. Page 239 for section 50, pages 240 and 241 for section 58 and we respectfully urge on this Court the reasoning which follows from paragraph 69 and following, but particularly in relation to a varied licence requiring there to be development consent, particularly, as I say, we urge the conclusion in paragraph 82 at page 245:
Accepting that s 58, dealing with variations, has no such express limitation, the proper construction of the statute suggests that the addition of a new scheduled activity to an existing licence cannot be done by way of variation if the effect is to permit the licensing of the activity absent the grant of a necessary development consent.
We would add only this to that, that in section 50(2) – see page 239 – the prohibition, to which his Honour was referring, the limitation, is expressed in terms which are familiar:
A licence . . . must not be granted –
and, in our submission, as an additional reason to bolster Justice Basten’s conclusion, one can simply say this. If a variation to a licence has the effect of permitting something not previously permitted, that is itself a licence. It is a permission, a statutory permission, and that statutory permission must not be granted unless, and that is a connection which is entirely consistent with Justice Basten’s reasoning. It is a slight variation in expression, and therefore, in our submission, that left the very simple question which was posed and answered in paragraphs 84 and 85.
We accept, with respect, the strictures expressed by his Honour about the terminology of “jurisdictional fact”. It is simply a question of asking, is this variation effective given the combined effect of sections 50
and 58? There was not development consent, if Justice Lloyd was correct, therefore the variation was not effective. There are no niceties in relation to any old‑fashioned mandatory directory. There is no agonised application of Project Blue Sky. It is very straightforward, a licence must not be granted.
Your Honour, special leave ought to be granted because clearly the matters are interrelated. The premise upon which we failed in the Court of Appeal on the licence question was, of course, the outcome of the issue upon which we got special leave in relation to interpreting the development consent. If we are successful in persuading your Honours that Justice Lloyd was correct, then, in our submission, the outcome that would have followed in the Court of Appeal is clear from the passages I have just taken your Honours to and we ought now to be put into that position with all the consequences of it. Your Honours, those are my submissions.
GLEESON CJ: Thank you, Mr Walker. Yes, Mr Ellicott.
MR ELLICOTT: Your Honours, the old cases that we rely on give us one reason why you should stick to construing the consent to avoid people who subsequently purchase the property from having to fossick through the papers. Now, that is exactly what my friend was doing for the last two‑and‑a‑quarter hours, fossicking through the papers to find what this consent means. He is asking this Court to fossick through the papers, the highest Court in the land, in order to assist apparently his client to reach a decision as to the meaning of some words that are used in that consent, 81/254.
Now, I will come to the cases, but the principle is fairly well known, fairly well understood, goes back to English authority, seems to have started here in the mid‑60s in relation to existing use and been developed in cases in the Court of Appeal by judges of such eminence as Justice Hope, who was very learned in this part of the law, developed through the Court of Appeal in cases during the 1980s and the 1990s.
The only decision – and I do not mean this in a derogative sense, but the only decision that points in the opposite direction, in our submission, will be found to be a case of Loreto in which Mr Justice Bignold gave a decision, and he bases it on a proposition flowing from section 92 of the Act. Now, I will come to that in due course, but the current authorities would support the view that when a court considers the consent that is relevant in this case then it will look at the consent and it will construe it and it will only look at other documents which are expressly referred to or by necessary implication are referred to.
That seems to be the limit of the law. The questions of permit or prohibit are very interesting statements, but at the end of the day, it is a question of asking what does this consent permit.
GLEESON CJ: Do I gather from something you said a little earlier that the consent that you say is the relevant consent is the 1981 consent?
MR ELLICOTT: Yes, I was going to take your Honours to it because that is where our case, I suppose, in a sense, begins and ends. You look at the consent. Now, we are not going to have a massive argument about whether you can look at the notice, but when we come to the cases, if the notice is being used so that you can then look back at the application and the EIS and then rummage through them in order to second‑guess what the council meant by ordinary words, if that is what my friend is seeking to do by reference to the development application No 315 on page 148, then we submit that that is contrary to authority. So, yes, let us look at both pages.
What is important about 148 is that the relevant land is “Lot 23, D.P. 606744”. The council was in no doubt and it has given a consent in relation to that:
for an aluminium remelting facility generally in accordance with plans submitted to Council –
Now, “aluminium remelting facility” are ordinary English words. The context you can look at for the purposes of that is to look at what people do in that particular area of remelting aluminium. The context is not looking at either the application or the EIS. They might give you some assistance on knowing what happens in an aluminium remelting facility, but the question is what is an aluminium remelting facility and it is one that you will come to consider in the light of the plans because it is generally in accordance with plans submitted to council. So we have to look at those as well.
When we do look at it, and I am just putting this in general terms at the moment, and look at the plans, we will find that the plans themselves show a complex of buildings, some additional and some existing which, together, we say, are a facility for remelting aluminium. Remelting aluminium, we know from agreed facts, and I will take your Honours to those, aluminium remelting facility will have two points at which a remelt will take place.
One is in melting furnaces, when clean feedstock is available. That feedstock comes from primary ingots that come from, say, Bell Bay and your Honours know the process of bauxite and alumina, alumina refined into aluminium. Aluminium ingots produced at Bell Bay and those primary ingots are what are processed – not everything, but those primary ingots that come in externally, they are processed in the melting furnaces, and we are not talking about the rotary furnace, the melting furnace.
GLEESON CJ: Can I just ask you a matter of detail, Mr Ellicott? You say the critical words are on 149?
MR ELLICOTT: Yes.
GLEESON CJ: If you look at 148 and the reference to “Development Application No. 315”, where do we see development application No 315?
MR ELLICOTT: As I understand it, if it has the right number on it ‑ ‑ ‑
GLEESON CJ: Is that at page 51?
MR ELLICOTT: Yes, your Honour, 51, and it is not the document at 49, it is 51, and it has the words “ALUMINIUM REMELTING FACILITY” under “Description of development or other activity” and I cannot read the other words at the moment.
GLEESON CJ: It is about line 30.
MR ELLICOTT: But at line 30:
Where development involves the erection of a building, the proposed use of that building when erected: ALUMINIUM REMELTING FACILITY
Now, there is no debate in a factual sense that involved the erection of some buildings, but that is the description which – it is put in that slot, but that is because the development includes – it does not say consists of, but:
involves the erection of a building, the proposed use of that building when erected -
They are not exclusive.
GLEESON CJ: If you look at page 50, line 30 – the document on page 50, line 30, if it is admissible to look at it at all, seems to suggest that the “new Remelt Facility”, referred to on paragraph 1 on page 49, is something different from the recently constructed “Can Recycling Plant buildings”?
MR ELLICOTT: Yes, your Honour, it says that and immediately it raises a query in one’s mind. That is why you do not look at it because unless it is – it is imported expressly, because the whole purpose of the principle is certainty, and to ask that question – and I am not being critical of your Honour, of course – is to try and second‑guess the council when they used ordinary words.
One of the things that Justice Hope said, as I recall it, was that if the council wants to – the council has an obligation to make it clear what they have permitted, and if they intended a restriction, well, they should make it clear, but if they use ordinary words, well those words should be given their ordinary meaning. For instance, there is a case I referred to about a church and office. Well, the Court of Appeal looked at it, applied the principle and said that included a mosque. Now, perhaps 50 years ago in Australia that might have been a conclusion that would not have been reached, ordinary words used, but in that particular case it included a mosque.
GLEESON CJ: I am trying to identify the issue. Does it come down to this, that your argument is that the aluminium remelting facility referred to on page 51 is everything on Yennora North?
MR ELLICOTT: Yes, on Lot 23, of course, and we know what Lot 23 is. We do not have any disagreement, we can go to the plan and look at it, and it is everything that is there. In a sense, there is some part of it not on Lot 23, but it does not matter. It is the car park.
GLEESON CJ: Anyway, the aluminium remelting facility referred to on page 51, in your argument, includes the can recycling plant. Is that right?
MR ELLICOTT: On page 51, yes, your Honour.
GLEESON CJ: That is what is all comes down to, is it not?
MR ELLICOTT: It does and, your Honours, I do not know whether I am out of step, but there is no point of principle in this case, with very great respect to my friend. There is not. We do not seem to be at odds about the way in which things should be interpreted. There is no discussion of cases by my friend. He refers to some sections, but at the end of the day the principle has long been established and really it is a simple – I will not say a simple question, it might not be easily answered, a simple question of construing a development consent, and I would submit ‑ ‑ ‑
GLEESON CJ: There is an interesting question, is there not, whether we can look at the letter of 26 June 1981 on pages 49 and 50 in resolving the question of construction that has just been identified?
MR ELLICOTT: There is a question, yes, but ‑ ‑ ‑
GLEESON CJ: You say no?
MR ELLICOTT: But if the principle is clear then what role does this Court play in relation to the application of that principle to a particular case. That is all I am positing, but that is ‑ ‑ ‑
GLEESON CJ: Is this a convenient time, Mr Ellicott?
MR ELLICOTT: It is, your Honour.
GLEESON CJ: We will adjourn until 2.15 pm.
AT 12.44 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.17 PM:
GLEESON CJ: Yes, Mr Ellicott.
MR ELLICOTT: Your Honours, could I just ask this so that I guess I can adjust myself to the time. Would your Honours contemplate if we do not finish we sit tomorrow or do your Honours have a firm view that this case must finish today?
GLEESON CJ: Yes, it is really the latter.
MR ELLICOTT: It is the latter. Does that mean your Honours might sit a little later?
GLEESON CJ: Yes, we sometimes do that.
MR ELLICOTT: If your Honours please. Can I take your Honours to the plans. They start at AB 55. Just to fill in the gap in the consent, that is to say, generally in accordance with their accompanying plans. Now, 57, I just take your Honours to it quickly. That shows Lot 23. My friend has assisted me by identifying Lot 23. It covers the whole of that area that is lightly shown – somebody has done a highlighter around it. It obviously includes the can reclamation area and I say those rotary furnaces. I will show your Honours how there were two rotary furnaces there, that is, at the time of 81/254.
So that clearly enough our argument is that the consent relates to the whole of Lot 23 – there is no question about that – and the consent is to an aluminium remelting facility, and the words are appropriate to include can reclamation – as I hope to satisfy your Honours by reference to certain matters – and also rotary furnaces, also melting furnaces, and when the council approved, it approved the whole of the operation that was going to go ahead on Lot 23.
Now, I will go to 56 first because it is important. Your Honours, 56 is the perspective. You will notice that these two plans, 55 and 56, have “REMELT – YENNORA NORTH PROPOSED NORTH ELEVATION (ARCHITECTURAL)” and up the top are the existing buildings and the bottom section is “ADDITIONAL BUILDINGS”. There is some particular printing that is important. Your Honours’ associates – and I do not ask them now to show them to your Honours – have enlarged copies of these, but if your Honours looked at them you might find they were too large to encompass on the Bench, but going to the top, the “EXISTING NORTH ELEVATION”, those buildings there, I think I can say without debate, include the can reclamation and the rotary furnaces.
Those two structures with the chimneys up, those are rotary furnaces and the small print down there refers to them. The one on the left, RF 2 that is referred to. That is the first one that was actually put there under that consent 80/40 and the one on the right is RF 1 and I will take your Honours to some material shortly to show that that came from Yennora South in part, and we will deal with that when we come to it, but those are “EXISTING”, the bottom are the “ADDITIONAL BUILDINGS”.
It is obvious that we are not saying there are no additional buildings and we are not saying that somewhere in some documents, if you were able to look at them, it would be called a remelt facility, and indeed, would know that in that remelt facility it was aluminium that was remelted, but the point is that this is a composite plan and a person looking at it would say this is an aluminium remelt facility, the whole thing. There are existing buildings and they are going to add to it, but the whole thing is an aluminium remelt facility.
The plan at 55 has a similar construction, in our submission. It is saying the same things. It is also “REMELT – YENNORA NORTH” and it shows “EXISTING SLAG STORAGE”, “EXISTING ROTARY FURNACE AREA”, “EXISTING CAN RECLAMATION AREA”, et cetera, but what it also does is have two areas. One is shaded and it is “COVERED SCRAP STORAGE” and “DROSS TREATMENT”.
Now, immediately we look at that. It is important because a dross treatment, that part of it has nothing to do with – except the dross comes from there with a remelt facility as such. The remelt facility seems to be that area to the left of that shaded area and if you had the big plans you would be able to read “a tilting furnace”, and those tilting furnaces are the melting furnaces, and the dross we are talking about that is internal comes off the top of the aluminium. It is just scraped off the top, and the problem with the dross - the words “hazardous waste” can apply to all sorts of things, and it may seem harmless to us, but the hazard is if the dross is subjected to water, ammonia can lift from it and it can become inflammable. That is the hazard. So you have to make sure that it is covered.
GUMMOW J: I am not sure one could be confident that one knows all these things oneself, Mr Ellicott, or that one would gather them just from the phrase “in which the development approval was given”.
MR ELLICOTT: Yes, but that does not mean that the whole of an environmental impact statement is accessible for the purposes. It may inform you about the nature of dross and I hope to take you to 4.2 and 4.3 later and it will say something about dross and it will help your Honour to understand what dross is. It being an aluminium oxide, due to the aluminium being remelted and very hot contacting the oxygen, the result is that it is something – the word “dross” gives the idea – that is impure and comes off the top, scraped off. Obviously it is hot, it has to be allowed to be cooled, but the danger is in the possibility of it becoming flamed if it is subjected to rain or anything of that description. That is what happens internally.
The purpose of putting it into a rotary furnace, as my friend suggests, was not to get rid of the hazard. The purpose of putting it into the rotary furnace was an industrial purpose, part of the manufacturing operation, that is to say, to take this dross which had aluminium in it and to purify the aluminium and to get rid of the rest. The rest is the solid waste spoken about in condition 19 when it refers to those parts of the EIS.
My point is simply this that in the area that was obviously being approved, on my friend’s argument, there is an area that relates to something other than a pure remelt facility, but my reason for coming to this plan is simply to indicate that it is describing a complex of buildings in which an activity takes place for aluminium remelting and “aluminium remelting” are ordinary English words and that is what this facility does. That is what it has always done and the things that are done, as at 1980‑1981 when this approval came about, were the things that were done prior to that, but done in different ways perhaps and I will come to that in a moment, so, your Honours, it was an integral facility.
Can I take your Honours to some paragraphs which were the subject of admission. There is a statement of agreed facts and your Honours will find that at 341. The paragraphs up to 8 just give some background and some foreground, but 9:
During the period from about 1962 to 1979, Comalco developed Yennora South (and some adjoining areas not leased to the Respondent) for use primarily as an aluminium remelt and semi‑fabrication plant. A number of development consents and approvals have been located on Holroyd City Council’s file in relation to such use –
and they are referred to –
10 Pursuant to Development Consent No. 74/43, a rotary furnace was installed on Yennora South and became known as “RF1”. The following materials were processed in RF1: used beverage containers –
Now, those were aluminium containers, in other words, aluminium cans –
dross produced as a by-product of the remelt facility at Yennora South –
so that was put into RF1 –
and other aluminium materials coated, treated or in some other way containing lacquers, paints, oils or other substances making them unsuitable for direction processing in the remelt furnaces.
Those aluminium materials might be old aluminium windows. Some aluminium windows, when pulled out of buildings, might be quite clean but others might be dirty, might be covered in oil, et cetera, or have been painted. There might be doors and other forms of aluminium structures that are pulled out of buildings or elsewhere and those went into RF1 to get rid of those impurities.
11 Before the installation of RF1, dross produced at Yennora South as a by‑product of the remelt facility had been processed in a dross bucket or barrel.
12 In early to mid 1980, Comalco erected and commissioned “stage 1 of a can reclamation plan consisting of . . . on Yennora North pursuant to Development Consent No 80/40. The rotary furnace installed as part of this new development was known as “RF2”.
13 Some time during the period from mid 1980 to 1981, Comalco extended the rotary furnace building on Yennora North pursuant to Development Consent No. 80/92 and Building Approval 80-182 (amended). Comalco then relocated, from Yennora South, those parts of RF1 which it considered were relocatable –
Just stopping there, 80-182, I will take your Honours to it, that was a building approval and the effect of that was to allow a rotary furnace building and a bag house. That meant there were then two bag houses, the bag houses being the equipment that took the impurities from the rotary furnace, in other words, they took the solid waste. That building consent was a deemed development consent under the Act.
The remainder of the additional furnace was built from new parts. The additional rotary furnace, while comprised of both new parts and parts of RF1, continued to be known as “RF1”.
14 During the period from 1981 to 1985, Comalco erected and commissioned a new remelt facility on Yennora North pursuant to Development Consents No. s 81/254 and 85/1. It was a condition of Development Consent No. 85/1 that the remelt facilities on Yennora South be decommissioned once the new remelt facility was operational on Yennora North.
Somewhere there is a statement that that one did not proceed and I think my friend referred to that this morning. If your Honours go to 19:
From 1974 until early 1980, dross produced on site at Yennora South was processed in RF1 on Yennora South. With the commissioning of RF2 and the relocation of RF1 to Yennora North during the period mid 1980 to 1981, dross produced in the remelt furnaces at Yennora South and, after their commissioning, in the remelt furnaces at Yennora North was processed in the rotary furnaces at Yennora North.
20 Aluminium obtained from the rotary furnaces at Yennora North was and is fed into the remelt furnaces at Yennora North.
21 Since about 2002, the Respondent has processed dross, crucible pourings and pot bottoms from Point Henry, Victoria in RF3.
RF3, so that it will not confuse your Honours, is referred to in 15:
In around December 1997, KAAL replaced the existing rotary furnaces at Yennora North, being RF1 and RF2, with a new rotary furnace, known as “RF3”.
That, your Honours, gives the perspective of what happens. It is important that used beverage containers were always processed through the rotary furnace.
GUMMOW J: Is this an aid to construction of the development approval, this material?
MR ELLICOTT: It is because it is telling your Honour the circumstances and, indeed, contains some admissions that make it clear that part of the processes that go on is the use of beverage cans, and has always been, as feedstock to the rotary furnaces. It was happening at Yennora South prior to the can reclamation plant being commissioned at Yennora North. In other words, the activity as such was not new.
People brought cans to Yennora South, obviously. They might have been small boys in those days, they used to go around and collect cans – your Honours might recall it – but later on it became a private enterprise activity and somehow the cans reclamation plant became a sort of “Rolls Royce” type of plant in order to meet the requirements and the demands in relation to aluminium cans, but the process as such was always there, always done. They received the cans; they had to store them somewhere before they went into the rotary furnace.
That is important because when my friend talks about a “can reclamation plant with a rotary furnace” the clear inference, the commonsense inference, is that the rotary furnace is going to be used for whatever it can be used for. One thing a rotary furnace was always used for was aluminium cans. Another thing was other unclean aluminium and another thing was the dross that came off the melting furnaces at Yennora South.
Now, on that basis, one has a picture of an aluminium remelt facility. It is remelting purer aluminium, the primary ingots, the clean windows and the aluminium that comes off the rotary furnace. That is that remelt. The other remelt is the rotary furnaces themselves that are processing dirty aluminium, if you like, and they are getting rid of the impurities through the bag houses. That is what an aluminium remelt facility is and, we say, that is exactly what has been approved and all the things that are appropriate to that activity are included.
If, over the years, there are changes in processes for running an aluminium remelt facility, changes in equipment, changes we would say in raw materials or the source of raw materials, as long as there is no restriction in the consent, then the consent will cover those things. We are not construing a document in terms of a principle in order to make a fine point about a particular activity. These consents have always been construed liberally on the basis that the council, if it wants to make it absolutely clear that something should not be done when they use ordinary words to broadly describe it, then they should put in a condition or make an exception. If they have not done it ordinary words will cover the activity and the evidence here establishes that.
The other thing that is important to notice, on that evidence and those admissions, is that the feedstock came irrespective of internally or externally. The feedstock to the aluminium remelt facility that came, I suppose very largely, from Bell Bay with the primary ingot. It also came externally from old windows that happened to be clean. It came internally from the rotary furnace, from the aluminium that was produced out of the remelt in a rotary furnace. As far as the rotary furnace was concerned, the cans and the dirty aluminium product, the windows, et cetera, came externally. The dross, until 2002, came internally.
Now, because the Act is consenting to a use and to some extent the councils are obviously concerned about environment, but there are other legislative provisions, as we know, like the Protection of the Environment Operations Act that your Honours are concerned with otherwise, that deal with pollution. The question of hazardous waste is not a massive point in relation to what is going on in the plant with the dross because the dross in the plant, although it has to be handled carefully and there is a hazard in terms of water, is not something that has to be gotten rid of, it is something that they have and which they use in order to produce aluminium that is clean and, of course, in doing that they have to get rid of the solid waste.
That perception, we would submit, underlies what the council has done and there is no basis for going beyond the consent, the notice if you like. The notice does not, in our submission, embrace the whole of the development application, that is simply referring back to the document which started the process and on the authorities it is not permissible to use it because it starts the process of confusion. If the council has overstated something, that is its responsibility.
HAYNE J: Just before you pass from that point, is the process of treating dross itself described as “aluminium remelting”?
MR ELLICOTT: Yes.
HAYNE J: It is not a process that is ancillary to. The process of treating dross, you say, is itself aluminium remelting?
MR ELLICOTT: No, it is aluminium remelting. It has aluminium in it and the dirty windows have aluminium - that is a process whereby the significant product of it is aluminium and it is obtained by remelting it in a process in the rotary furnace. Of course, it has other things attached to it to deal with impurities.
GUMMOW J: Is there any evidence bearing on this question, Mr Ellicott?
MR ELLICOTT: On what question, your Honour?
GUMMOW J: The question you just answered to Justice Hayne, namely, as to the meaning of the expression “in the development approval with reference to the dross”.
MR ELLICOTT: There is evidence, if you are going to look at it, in page 140.
GUMMOW J: I was hoping you would have a finding somewhere by a judicial officer at some stage in this litigation.
MR ELLICOTT: Your Honour, proceedings of this character are conducted between parties that obviously understand what they are doing and they understand what a ‑ ‑ ‑
HAYNE J: They have to explain it to the ignorant like me, Mr Ellicott. That is the difficulty.
MR ELLICOTT: Your Honour, that should not be at our door for this reason that the words are appropriate to, in our submission - “aluminium remelt facility”, are appropriate to describe a process and there was no question that a rotary furnace is part of that process.
HAYNE J: I understand that.
MR ELLICOTT: If your Honours are concerned about the specifics of what it does there is no difficulty about that either. At page 214, in the judgment of Justice Basten, starting at the foot of 213:
For many years it has processed scrap aluminium and recycled aluminium cans. One of the by-products of aluminium processing is a form of aluminium oxide known as “dross, which can itself be reprocessed to produce aluminium. Alcoa has also processed, in its plant at Yennora, dross produced in its melting furnaces.
If you go to 140, line 20 – it may assist your Honour:
Dross is a product of the oxidation of aluminium when in the molten state.
Dross generation is related to furnace time of melt and composition of furnace charge. For example above 1,100°C dross formation increases markedly.
HAYNE J: I had observed that definition before I asked you the question, Mr Ellicott, because it led me to this, if I may expose the chain of thought that underlay the question so that you may answer it. The definition at 140 – the description, it is not really a definition, I suspect - the description at 140 of “dross” provoked the thought that dross is a by‑product of aluminium remelting and that dross and its treatment may not itself be aptly described as “remelting aluminium”. Rather it is the treatment of a by-product of aluminium melting. That is the chain of thought and that I say I needed explaining.
MR ELLICOTT: It does not really matter which of those it is, your Honour, because we are dealing with a description of an industrial operation. It is called “aluminium remelting”. It would be, in our submission, a very fine point to take to say that a rotary furnace does not remelt aluminium, which seems to be contrary to the facts, but it takes a by‑product of the melting furnaces. Confine it to dross for the moment, the dross comes from the remelting furnaces, yes, but it is aluminium oxide so it is a form of aluminium and it apparently has impurities in it so it is remelted, that is what a furnace does. I do not think we need a dictionary even to tell us that.
CRENNAN J: It is just that there are two remeltings really: one, the can reclamation process is the first remelting producing dross and then dross in its capacity as feedstock is remelting as well.
MR ELLICOTT: The first process, your Honour, the rotary furnace is one of the processes of remelting, but it is only confined because of impurities. If it is beverage cans, if it is aluminium cans, they obviously have paint and somebody might have left something inside the can and all sorts of things can happen, we know that, so that has to be gotten rid of because the remelt furnaces, those have to deal with a basically pure aluminium so that they can provide a stock that can be rolled and to be fabricated or semi-fabricated. The rotary furnace is just simply part of the process to deal with the dirt.
CRENNAN J: Clean your dirty scrap.
MR ELLICOTT: Clean your dirty aluminium, it does not produce dross. What it produces in the sense of aluminium is clean aluminium which comes out of the dross which comes out of the dirty windows which comes out of the aluminium cans. So far as the impurities or waste is concerned, that is solid waste that goes through the bag house.
If we go to condition 19 we get some further illumination. That is interesting, condition 19, because my friend wants to refer to the whole of the environmental impact statement and is it not strange that the council has selected out these particular clauses. It is important to note the words in condition 19 before we go to the clauses because it is only dealing with two particular things:
Disposal of liquid effluents and –
interpolating –
disposal of solid wastes being strictly in conformity with the details set out in items 4.2 and 4.3 of the Environmental Impact Statement -
It is the disposal which is to be strictly in conformity with the details set out in those items. It is not trying to say the dross must come internally. Those start at the foot of 107, 4.2.1 “Process cooling water” and we are into liquid effluents:
Lubrication and hydraulic oils
All lubrication and hydraulic oil spillage will be collected in a sump and pumped into 200 litre drums for disposal off site -
So that is the “disposal of liquid effluents”, that is one of them:
Domestic wastes
Full sanitary services will be provided for the personnel and the wastes will be discharged ‑
That is the disposal of domestic wastes:
Stormwater drainage
Scrap charge materials and dross produced from the remelt process will remain under weatherproof cover in the remelt facility and no solid waste leachate will be generated.
We are dealing now with solid waste. Those things are to be done so that “no solid waste leachate will be generated”:
Normal roof and surface water-run-off will be collected in a drainage system for discharge to the existing adjacent creek drainage easement –
liquid effluents –
Generation and Disposal of Solid Waste
4.3.1. Sources and quantities
The rate of dross formation will be significantly reduced in the new remelt plant because of lower operating temperatures . . . a reduced melt time, and furnace pressure control which will be maintained at a value close to atmospheric pressure, thereby eliminating the present problem of uncontrolled excess air –
eg, oxygen –
in the furnaces during the melting process.
Nothing said about disposal of solid waste yet or liquid effluents.
HEYDON J: “Disposal” is found in 4.2.2, 4.2.3, 4.2.4. You have read us 4.2.2 and you have read us 4.2.3 and you have read us 4.2.4. Is the only other one 4.3.3?
MR ELLICOTT: Yes, that is the only other one.
HEYDON J: We are only concerned with “disposal” of two types of things, those are the four clauses. Leaving aside condition 20 which deals with another subject, that is all we are to look at in the Environmental Impact Statement and it would not really matter whether the letter on page 148 was included or not. We are not to read every word of the EIS, only those four clauses. That is your argument.
MR ELLICOTT: Yes, that is the point. In reading 4.3.1 and 4.3.2, I am just leading on to 4.3.3 but also answering my friend because he is trying to use that as almost an endorsement of the fact that only internal dross is to be used. This is why Justice Basten spent so much time, your Honours, in that passage. The reason why he got on to that issue and seemed to make that the point was because that was their way of escaping the generality of the words, “aluminium remelt facility”. They wanted to say that somehow you got out of the history and the previous approvals. You got out of them a non‑permission to use externally sourced dross.
GLEESON CJ: Mr Ellicott, what, if any, significance do you attach to this concept of “stage 1” in the 1980 consent? Is that something you rely on as supporting the idea ‑ ‑ ‑
MR ELLICOTT: Yes, I do.
GLEESON CJ: ‑ ‑ ‑ that ultimately the can replacement facility became part of a larger facility.
MR ELLICOTT: That is a submission I want to come to, your Honour. It is fairly short and I can deal with it now, and that is if you look at the whole of this process, it was obviously a reflection, we say by inference it is a reflection because it all happened at the same time, of moving certain aspects of their operation from Yennora South to Yennora North. They start off by a can reclamation plant. Now they called it stage 1 of a can reclamation plant. There may not have been stage 2, but that was a step in a process.
The next step was the relocation of the rotary furnace, which was relevant to the remelt facilities, so it was moved. That is, RF1 was moved, and that was moved under 80/182 and the next stage was moving the actual remelt furnaces and any storage areas that might be relevant to it. So that at the end of the day, as a result of this process, the staged relocation, you would call it, you had what was called an aluminium remelting facility on Yennora North. That is exactly what happened and that is exactly what this is.
Now, a part that my friend, I think, relied upon, I just wanted to refer to it. I do not rely on it. I simply want to say what I want to say about it. “It is therefore anticipated that the volume of slag and baghouse dust generated from dross treatment in the adjacent rotary furnace complex will remain at current levels”. I mentioned earlier, and I will take your Honours to judgments of Justice McHugh where he emphasises that what you have to look at in construing these consents is – and Justice Kirby, when they were both on the Supreme Court in New South Wales, developed these notions out of earlier cases – that when you are looking at it, you try and find the genus. You do not get into the detail of the particular operation. If, for instance, it is a shop, it might be a grocer shop or it might be a shoe shop, but it is a shop. You do not get into the detail. The cases are as broad as that.
In relation to more, perhaps, complex descriptions, but nevertheless describing an activity, a particular factory processing particular goods, it may be that the equipment that is used advances and it may have some problems with pollution, even though it is advanced equipment, or there may be changed work practices, how the job is done, and completely new machinery is used. There may be a shortage of raw material. The raw material in the past has been produced locally. It has to be sourced in foreign countries or something, bringing all sorts of problems for the quarantine.
Those issues, those other issues, that they might raise, they are dealt with by other legislation. They will be dealt with by the Clean Air Act, as it was then, or if you have to transport goods, it will be dealt with by the transportation of goods legislation. Or if you are going to increase the volume of your output, the EPA Act is going to come in and the Environmental Protection Authority is going to ask questions.
We know – I hope I can say this – that under that Act, the Environment Protection Authority is constantly monitoring the air in cities like Sydney and Melbourne, et cetera, and taking readings. That is one of the things that it is their task to do. So that if impurities come from this particular operation because some additional dross is processed, then the question of whether that can be processed is going to be dealt with normally within the limits of a licence under the protection of the Environment Operations Act, which will have conditions about the levels of impurities that can be emitted into the air.
If the new operation is going to cause some problems, it may be that the pollution effect is such that it will not be allowed and you cannot bring dross in externally, or you cannot bring more than so much dross in externally. Those events look after themselves in the sense that these consents under the EPA Act that we are dealing with here, those consents have to be read according to their ordinary meaning.
Now, it is not an argument or a debate, in our submission, we have to enter into in order to put our case that you could not use the rotary furnace for dross under 80/40. That was the can reclamation. We would submit that is a very narrow interpretation of what could be done under that. My friend is forced as a matter of intellectual purity to take that point, but in practical terms, that is because he wants to confine where the dross comes from, so he also wants to confine what can go into it. He wants to say that dross cannot go into it, and therefore he has to be pristine about it.
But when you look at it in a practical sense where you are dealing with the question of whether or not a can reclamation plant that you know in the circumstances is being put there to specialise a particular activity that has always been done and give it special equipment, and where you know that the rotary furnace is an instrument that is used, has been used previously, not only to process the cans, but dross, common sense in that context would say that the rotary furnace will go on being used as it was, but it is going to be in a special place because it is handy to have it there along side the can reclamation plant, but more than that, we are going to move all our activity up there relating to remelting and for the time being we will have to bring the dross from the remelt furnaces up from the south to the north, but that is in the process of moving the plant from one point to another. We would submit there really is not anything in that point.
I have made the point, and I do not think I need to belay any further on it, that there is no limitation in any of these on the source of feedstock so far as the other elements than dross are concerned. There is none at all. The source of dirty scrap is clearly external. The source of the ingots is clearly external. The source of the aluminium cans is external and their quantities are, in terms of cans, on the increase at this time. So the whole exercise is more about dealing with what is external. That aluminium out there that has been used, we want to recycle it. The plant has an external look to it. It is designed to deal with what is external basically, but dross is something that can be produced. It is produced internally, but it is also something that is out there and it can be brought in.
I have dealt with the question of a staged relocation. Your Honours, on the question of construction and principles, in our submissions we have set out – and I think it is a convenient way to take your Honours to the authorities – at page 8 in paragraph 30, President Mason’s judgment in House of Peace v Bankstown City Council 48 NSWLR 498. Some of these cases, your Honours will be familiar with existing uses. I have no doubt existing use is a concept in Victoria as well as in New South Wales and elsewhere in Australia, but if I may just read from what was said in ACR Trading:
The search is not for what the Council actually intended or what, if it had been interrogated about various possibilities, it would have said it intended. As an instrument having the characteristics referred to by Else-Mitchell J and Stephen J in the passages cited at [23] –
Now, those are passages in Ryde Municipal Council v Royal Ryde Homes 19 LGRA 321 at 324 and Eaton & Sons v Warringah Shire Council. If I may just read this? It is a short passage in what Justice Stephen said:
a consent . . . is essentially impersonal in the sense that it does not concern itself with and is not limited to the applicant but is a consent to the world at large in relation to the land which is its subject. Once granted it makes lawful, in a town planning context, what would otherwise be unlawful but does so by reference to the acts done and no the identity of the actor -
That concept plus the notion that a consent is in the nature of – and you cannot push this too far, this proposition. I am not trying to ‑ a document of title. Those concepts lay behind this approach. There is then a reference to Auburn Municipal Council v Szabo and I will take your Honours to that in a moment. But down the bottom there is a quotation from Justice Kitto:
“the precise manner of use for [the identified] purpose” and “use generally for that purpose. … The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities … but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date”.
That is in terms of existing use. Then there are three propositions which are set out from the judgment of Justice Kirby as President in North Sydney v Boyts. He refers to the genus. He says in 2:
Nevertheless, the general approach to be taken is one of construing the ‘use’ broadly.
We would say construing what is consented to broadly:
It is to be construed liberally such that confining the user to precise activity is not required. What is required is the determination of the appropriate genus which best describes the activities in question.
In determining that genus, attention should be focused on the purpose for which the determination is being made. This is a town planning purpose. It therefore considers the use from the perspective of the impact of the use on the neighbourhood. This is because the regulation of the use within the neighbourhood is the general purpose for which planning law is provided.”
There is reference to Justice McHugh:
“… a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date.
Now, admittedly, what they are doing is describing what is happening on land, its existing use, but these propositions have been applied to the construction of development consents. Indeed, Justice Mason is applying them in House of Peace in that way:
Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land. …The foregoing cases were concerned with the activities of a particular business or industry or with activities of a common kind. But I see no reason why the principle upon which those decisions were based is not also applicable to a case where land is used for activities, processes or transactions of widely differing kinds.
In the case of Auburn City Council v Szabo, there is a reference in my friend’s submissions – he has set out the judgment of Justice Hope in Auburn. It is at page 9 in the appellant’s submissions in paragraph 31. His Honour said this:
The question arises whether, in order to determine what development that consent authorised, one is required or permitted to go to the application for approval or to any other document. This matter was considered by this Court in Ryde Municipal Council . . . and by the Court of Appeal in Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196. It is apparent from these decisions that in determining what a council has approved, one primarily looks at the document constituting the approval, and construes it. The necessity to do this arises, inter alia, from the fact that a development approval does not enure only for the benefit of the applicant. It enures for the benefit of all future owners or occupiers, and it would create a confusing and difficult, if not impossible, position if in order to determine what a council had approved one had to go to a whole series of documents and try to determine which of the documents and which part of any particular document the council intended to incorporate in its approval. The terms of another document may be incorporated in a development approval either expressly or by necessary implication, but I do not think it is possible otherwise to go to documents outsides the formal approval in order to determine what has been approved. In particular, it is not possible to go to the form of application for approval unless in some way that document has in whole or in part, expressly or by necessary implication, been incorporated in the consent.
So that is a clear statement by Justice Hope:
On some occasions no doubt there is such an incorporation. Thus, if an application were made and a council did no more than approve the application, it seems to me that by necessary implication the terms of the application must be incorporated.
That may, obviously, lead to a problem of construction, because you have to interpret what that means if, when you look at the application, it has words which can be confusing or leave ambiguities and the like, but there is no other way of doing it. So the law has accommodated itself to that position. He says:
In determining what the terms of a development approval are, I think that it is also relevant to have regard to the provisions of –
I do not think we need to read that to your Honours. That is the fundamental principle. As I told your Honours, in House of Peace it was approval of a church and office and it was said to include a mosque. There have been other examples. We have handed up a book of cases which has other statements of the same principle, for instance, in Winn’s Case and by Chief Justice Spigelman. Now, this Court in Hillpalm at 501 – your Honours, I will just read it because it is only a short passage ‑ ‑ ‑
HAYNE J: This is then Justice Kirby’s dissenting opinion, is it?
MR ELLICOTT: It is. Yes, your Honour. We would submit that that is a statement which has been approved by his Honour. There are judgments of his Honour in the Supreme Court which do endorse that. He has endorsed that in this judgment. We would submit that it does not – that there is nothing in Hillpalm, in other words, that would cause your Honours not to accept his Honour’s endorsement of that.
In Concrete v Parramatta Design 81 ALJR 352 at paragraph [64], in the judgment of their Honours Justices Kirby and Crennan, there is a passage which leads to an approval or recitation at page 367, paragraph [67]:
The legislative scheme and the steps taken in the processes covered by the legislative scheme in this case constitute the background against which Concrete’s claim, to an implied license to use the plans and drawings in the development consent, falls to be assessed. There is a longstanding principle that a development consent is not personal to the applicant but endures for the benefit of subsequent owners during the currency of the development consent. In Ryde Municipal v Royal Ryde, Else-Mitchell J said:
… a consent to the development of land under a prescribed planning scheme is not personal to the applicant but enures for the benefit of subsequent owners and occupiers, and in some respects a consent is equivalent to a document of title.
I do not want to promote a debate on this, but in the headnote it does say that your Honour Justice Gummow agreed with that. I could not find the precise words in which your Honour agreed with it, although there are some general words there that – in any event, that statement is basic to the principle and it has been endorsed by this Court and Justice Stephen, in a sense, in Eaton’s Case endorsed it. We would submit that the Court would be very slow to upset the principle stated based on it by Justice Hope in the decision of Szabo.
Now, in the submissions of my friend, he has dealt with a number of cases. I do not want to leave them unsaid in case your Honours have a different view about them from that which I would want to put. There is a decision of Halglide. These are all directed to showing that the Court should go outside ‑ ‑ ‑
GUMMOW J: (1990) 71 LGRA 215.
MR ELLICOTT: That is 71 LGRA 215. In this case, if your Honours go to page 220, at the foot:
The conditions of consent require that the “development” take place generally in accordance with such plans . . . In my opinion, by notice of determination No 4908 of 9 May 1986 Council approved not only the erection of a retail and office building, but also its use for that purpose as described with more particularity in the specified plans.
The question was whether his Honour could look at the plans. The case, in our submission, does not lend any assistance to the notion that somehow you can go outside the principle, that is, you cannot go to another document unless it is expressly referred to or it is there by necessary implication. There is no departure from authority by his Honour in that case.
There is a decision of Woolworths v Campbell 92 LGERA. It is a judgment of Justice Sheller. At 249 his Honour dealt with the issue two‑thirds of the way down:
The development application, according to the notice of determination, was determined by the granting of consent subject to the conditions specified. The conditions did not include the proposal and began by saying that the development was to take place generally in accordance with the development application except as modified by the undermentioned conditions . . . Condition 1 incorporated the terms of the development application except to the extent that they were modified by other conditions such as condition 11.
So that case is not, in our submission, authoritative for taking a wider course because, again, it was expressly referred to. As far as our research goes, the only case that tends to go outside it is Loreto that I referred to earlier, Loreto Normanhurst Association v Hornsby Shire Council (2002) 122 LGERA 347. His Honour held that in order to properly appreciate the nature and description of the developments that were approved, it was legitimate to consider the documents comprising the respective development applications that yielded the development consents. They had regard to the terms of the development application construing the development consent the subject of some section 92 notices.
Now, my friend relies, I think, on paragraphs 20 to 33, I think it said, of the judgment. In that case his Honour at page 354 referred to what Justice Sheller had said, that I just referred to, and the fact that the terms of the approval incorporated the application. At paragraph 27 he says:
Although the competing judgments in Woolworths can be explained by the different interpretations adopted of the relevant language of the s 92(1) Notice, I would respectfully suggest that the interpretation found in the majority judgment could also have been arrived at more directly by simply concluding that it was “the development application that had been granted consent subject to conditions” which conclusion reflects and adopts the language of the prescribed Form 7 and the statutory language of the EP&A Act . . . Section 91(1) relevantly provided:
“A development application shall be determined by:
(a) the granting of consent to that application, either unconditionally or subject to conditions -
Then section 92, your Honours, provides for a form of consent. At 30 he says:
In my judgment, the very comprehensive and detailed statutory regime contained in the EP&A Act and Regulation for the making of a development application and for the determination of that application and for the notification of the determination and for the public availability of the register . . . means when that statutory regime is implemented that the development application (and its supporting materials that constitute the due “form” of the application and the due “manner” in which the application is made) is incorporated by express reference in the s 92(1) Notice and that it provides the full and proper description of the approved development -
That is the passage, as I understand it, although I do not think my friend refers to it expressly, but it is referred to in his submissions, upon which he relies. If your Honours go to the attachment in my friend’s submissions, under section 92 it provides that:
Notice of a determination under section 91 shall be given to the applicant in the prescribed form and manner -
and 44 says the prescribed form is form 7 –
The consent authority shall give notice to the applicant of a determination under section 91 of the Act when or as soon as practicable after that determination is made.
That draws a distinction between the making of the determination and the notice being given afterwards. The consent, in other words, is distinct from the notification. There are provisions in this then that certain sections shall be referred to. The form, your Honours will find form 7, and if your Honours go to a third of the way down:
The development application has been determined by‑
…
*(b) granting of consent subject to the conditions specified in this notice –
Now, before that:
Pursuant to section 92 of the Act notice is hereby given of the determination by the consent authority of the development application No. ….. relating to the land described as follows –
Then it goes on and says what I have just said. Now, what, as I understand it, is being said is that this is an illustration of what Justice Hope said. It may be. We do not have to debate it because the notice that was given here was not in that form, but it was in substantial compliance. Your Honours, under the Interpretation Act 1897 I do not think that there was the equivalent provision that there now is in the Interpretation Act section 80:
If a form is prescribed by, or approved under, an Act or statutory rule, strict compliance with the form is not necessary but substantial compliancy is sufficient.
I think my friend, in addressing your Honours, was minded with that in mind to show that in substance this notification at 148 and 149 did comply substantially. That is what I read into his statements because he had pointed to the fact that those conditions that were in regulation 44 were satisfied, because there was a reference to 97 of the Act. There was a reference to section 93. There is also a reference which is required under section 92(2)(a) and the date of consent has to be endorsed and it is there.
So far as Loreto is concerned, we would submit that his Honour’s judgment, first of all, it is clearly obiter and is obviously not binding on this Court anyhow, but it is also wrong. I do not have to show it is wrong, but I would invite your Honours, if your Honours think you have to go to it, to come to that view. We do not have to do it, because the form is here in 148 and 149. It is not a breach of the Act and it would not matter if it was, in our submission. The fact is that this is the consent and this consent, under the authorities, does not have the effect of including the development application, because it does not say that we approve the development sought under the development application, as Justice Hope said. It says something quite distinct.
Now, your Honours, I am not pausing to go through the EIS. My friend has attempted to extract out of it everything that he thinks is helpful to him. There is no doubt that it refers to some construction of some plant. There is no doubt it calls it “remelt facility.” Our argument is you just do not look at it. But on the other hand, we do not contest the fact that as a result of – and in the process of this consent, one aim of this application was to get approval for those buildings to be erected.
That, for reasons I have already advanced, we say you should not look at. In any event, if you do, we would still say that what you can glean from the plans is that what the council was wanting to approve was an aluminium remelting facility as described in those plans. For that reason, we would ask your Honours to dismiss the appeal.
I should, before concluding on that, refer first of all to what Justice Basten said at page 228, just to put it in its context. At 43:
It may be accepted that there was no application in 1980 or 1981 to use dross imported from places beyond Yennora –
and he goes on in those paragraphs – I will not read them, because obviously your Honours have read them – to deal with this question as to whether there is an implication. But the proper reading of the judgment is that he was answering Justice Lloyd’s findings because that was the way in which Justice Lloyd dealt with the matter, by saying this was a very narrow consent and it only related to dross that was internal and gave no approval to external dross.
That is the reason why his Honour tends in his judgment to spend much more time on that than he does on the issue that I am submitting to your Honours is the major answer to my friends and that is, what is the meaning of the consent? Indeed, most of the argument below on the part of the appellants, as I recall it, was in dealing with this point. Of course, my friend today has repeated that argument, namely that there is a restriction. We are really saying that the consent 80/40 is irrelevant. It does not matter. It would not matter what it meant. We have a consent for an aluminium remelting facility and that is the end of it.
GLEESON CJ: Mr Ellicott, if you look at page 229, line 2, your submission, as I understand it, is that what Justice Basten there refers to as “the melting furnaces” and the “rotary furnace,” are all part of the aluminium remelting facility?
MR ELLICOTT: Yes, your Honour. His Honour also says, I am reminded, that there was no limitation on the source of the feedstock in the can reclamation centre. You can search it and there is not.
GUMMOW J: Can I ask you, Mr Ellicott, at some stage to deal with paragraphs 40 and 41 in the primary judgment at page 199?
MR ELLICOTT: He commits the cardinal sin in the first sentence:
I must say that in looking, as I am permitted to do, to the development application and the environmental impact statement I am unable to agree with that submission.
GUMMOW J: That is a reference back to paragraph 25, I think, on page 195.
MR ELLICOTT: Yes, your Honour.
GUMMOW J: There is a citation of Halglide and Blacktown City Council, which I do not think we have been taken to.
MR ELLICOTT: He has committed what we submit is wrong.
GLEESON CJ: What about the second sentence of paragraph 40?
MR ELLICOTT:
According to the plans, that application relates to a discrete portion of lot 23, namely the unoccupied area adjacent to the existing can reclamation facility.
It does not, in our submission. It relates to Lot 23.
GLEESON CJ: That seems to me to be the point of departure between you and your opponents, in a sense.
MR ELLICOTT: Yes. The plans themselves do not and there is nothing on the DP of course and nor does the second plan at 56. There is no distinction. It is all part of the one facility and it is called a “remelt”. His Honour does not explain that. I am not criticising his Honour. I think it is an ex tempore judgment:
The two applications are separate and discrete but not entirely unrelated.
We say we might agree with that, but he says:
They are not entirely unrelated because of condition 19 of development consent No. 81/254, which not only enables but requires the disposal of liquid effluent and solid waste to be strictly in conformity with items 4.2 and 4.3 –
So it does, and I have dealt with that.
GLEESON CJ: Your argument, as I understand it, treats the 1980 application as stage 1 of the move of the remelt facility from south to north ‑ ‑ ‑
MR ELLICOTT: Yes. When you stand back and look at everything, yes, but it stands independently as a consent. It cannot subtract anything, in our submission, from the terms of 81/254.
HAYNE J: Confining attention then to 81/254 and looking at page 51, if I am permitted to look at is the – if we are permitted to look at is the ‑ ‑ ‑
MR ELLICOTT: Yes, if your Honour – yes. We say no, but let us say we do ‑ ‑ ‑
HAYNE J: I understand that. When I go to the block marked “B” at about lines 25 to 30, the bit that is filled in is against a rubric or under a rubric where development involves the erection of a building.
MR ELLICOTT: Yes, that is what I read this morning.
HAYNE J: I understand that. It suggests that this is relating to what is new on the site, rather than what is existing. Do you say the two permits survive or do you say this 81 one supersedes the 81? How do they relate?
MR ELLICOTT: 81/254, really it stands on its own and it, of necessity, permits that which is not permitted under anything previously. I do not have to, in that submission, make any concessions about or have any problems with any of those former consents. What I would point out about those words located where they are on 51, if your Honour thought you could look at it, B, I think it is, says:
Description of development or other activity (eg, act, entitlement, demolition, etc) for which development consent is sought –
but it has a special little box where the development does involve the erection of a building. So my point this morning was simply that they put it there because they are instructed to do it. It is where the development involves, as it does, but it is also a development which involves, in accordance with the definition, the use of land and the use of land as an aluminium remelting facility, that is to say, the use of Lot 23 now agreed is that lot.
HAYNE J: Be that all as it may, you say that we confine attention to 81/254 as reproduced at least at 149, perhaps only at 149, and that is the whole of the lot?
MR ELLICOTT: That is it, your Honour. That is our argument. I hope I have answered your Honour Justice Gummow’s question. There was a reference by my friend to a figure of 24,000 square metres. It is very difficult to find that 24,000 square metres. The plans you can multiply figures to get the square metres, but whenever we multiply it we can never get 24,000. It tends to be a smaller figure or a larger figure. All we know is that this is 42,950 square metres, that is Lot 23, because it 4.295 hectares. But again we are speculating. Those new buildings, our calculation is that that only covers 13,100, but anyhow, we find it difficult to give any meaning to that.
Your Honours, we have handed up a copy of the definitions of “development” and it means:
(a) the use of land, and
(b) the subdivision of land, and
(c) the erection of a building, and
(d) the carrying out of a work, and
(e) the demolition of a building or work, and
(f) any other act, matter or thing referred to in section 26 –
et cetera. I am told that (e), demolition, was not in there in 1981, so it is that, excluding (e).
development consent means consent under Part 4 to carry out development –
full stop. The rest of it was added later. Nowhere in the consent, of course, will your Honours find any reference to dross. In other words, the only reference is in condition 19, but it is a very indirect reference. There is no restriction and that movement of rotary furnace No 1 from South Yennora to North was not done as part of the – if one goes to the relevant building application and consent, you will find this. It was not related to the can reclamation plant. The consent was given independently of that.
We would therefore submit, your Honours, that your Honours should dismiss the appeal, but if, for some reason, which we may at the moment not apprehend, your Honours might allow the appeal then the question of discretion has to be considered.
The position is that these parties have proceedings before the Land and Environment Court which is set down for hearing, I think, late in August. Those proceedings involve an application that could be made in order to obtain consent independently. The Minister was the relevant authority and he delayed and that is deemed to be a refusal and then the matter goes as a Part 4 matter to the Land and Environment Court.
So the matter is currently before the court and the only issues actually that are involved, as I understand it, is not the consent to the activity or the use which would involve the export dross, but the conditions that relate to it. I mention that because I would submit that there is no – I am now into the application for special leave, your Honour. There is no utility in this Court considering this matter for this reason, that in circumstances where our client acknowledges that it has to get – that is apart from the appeal that we have just concluded – it has to get consent and it is taking steps to get consent and the Land and Environment Court is about to consider it in circumstances where the only issues relate not to whether the activity can be undertaken, that is, to bring in the dross. The only issues relate to conditions, that there really is no utility for this Court to give special leave in the second matter. It is going to resolve itself one way or the other.
If your Honours, for instance, allow the appeal – I will look on the gloomy side – and then the Land and Environment Court for some reason imposes impossible conditions that make it necessary for Alcoa to reconsider its position, then so be it. That is what would happen. If, on the other hand, we succeed in the appeal, having it dismissed, then obviously those proceedings, they might have some relevance because they deal with a different application and different considerations, but we would think that that should terminate those proceedings.
GLEESON CJ: I do not understand Mr Walker to be pursuing his second special leave application if his appeal is dismissed.
MR ELLICOTT: No, that is right. But if his appeal is allowed, then we are saying there is no point, because the matter is before the Land and Environment Court and there is really no utility in this Court spending time and energy and public money on the process of considering the interesting questions that would arise, but I make the point.
Your Honours, there is also a question of whether it is a satisfactory vehicle, that is to say, to resolve the questions of principle. Usually, as I understand the Court’s practice, it will want a case where the facts are clear and not in doubt on critical matters. So far as the licence variation is concerned here, there was considerable confusion. It may be that various passages in judgments or admissions in pleadings tend one way, that is to say it was amended in a particular way, that is to seek to include a new scheduled activity.
When you look at the licence variation or the varied licence, you will see that when you read it, it gives you instructions as to what the original licence – you can discern what the original licence was by seeing whether certain things have been crossed out, like the second draft, et cetera, of a document. When you follow that process, you are left with a proposition that it looks as if no new scheduled activity was sought under the licence.
So it becomes a case then not of the licence having been varied to include a new scheduled activity, but it becomes a case of the licence having been varied to vary a condition, the condition being that whereas before you could not process any dross other than what was internally generated, the condition in the future was you can up to a certain limit process and store dross which comes from an external source. There is no specific reference as to Point Henry in it, for instance.
So it is obviously a matter, your Honours, if I now go ahead – unless your Honours rejected leave now, your Honours will know more about it when you consider it and determine whether it should be refused for that reason. I do submit it is a not a proper case for the Court granting leave.
Can I take your Honours now to the Act itself, the Protection of the Environment Operations Act. I will be as quick as I can, your Honours. What we are really saying – and I am assuming your Honours have had the time to read the sections – is this. There are two parallel sets of legislation. There are the local government aspects, that is to say the Environment and Protection Act and there is the Protection of the Environment Operations Act.
Under one, that is the EP & A Act if I may call it that, under that approval, or consent, is given to the use of land – I will use that broadly, but it includes all those other things. It says how land may be used, may be used for this purpose. Under the POEO Act, what it is dealing with is really the manner in which the land can be used for that purpose and it deals with, obviously, pollution. In other words, these Acts are not in conflict but they are separate from one another; they are parallel. They complement one another.
The consent under one goes a distance but not very far, that is the development consent, does not go very far because if you are conducting an activity that has a polluting effect you are in trouble unless you have a licence. So you cannot activate your development consent unless you have a licence. The two operate in tandem. We say section 50 is only a timing provision which only comes into play when there is an application for the grant of a licence, not an application for a variation of a licence.
The POEO Act, that particular Act obviously is requiring the consideration of matters affecting the environment in section 45. When the licence is granted, it is granted in order to lift a prohibition and the prohibition is that you shall not carry on operations on land which are scheduled activities unless you have a licence to do so, to carry on those operations or those activities. There are scheduled activities – and we will come to those in the schedule – that relate to this particular land. Then in granting a licence there can be conditions imposed under section 63.
Now, those scheduled activities in a given case, they may or may not require a development consent. They may be activities where there may be no effect on the environment, et cetera, or they do not come within the concepts of the EP & A Act and no development consent is necessary, or there may be cases where the Act, even though there are polluting effects, no consent is required. There may be cases of course where a particular activity is licensed and no consent has been sought. We point this out in our submissions, that when you come to section 58 under “Variation” that it itself raises environmental issues in subsection (6). It relates to the case where if for any reason environmental consideration has not been given to the matter, and when that happens the EPA Authority has to deal with that particular issue. That would be particularly so where there were environmental considerations and no consent had been sought.
So we say that there is a different regime for the issue and the transfer of licences, that is, the initial issue. We say that section 50 is a timing provision, that is to say it is only trying to co‑ordinate at that stage the two things, that is the development consent and the licence which, in many cases, will be required – some cases it will not, but if at the time of the grant that happens, section 50 descends on it and says “You can’t grant the licence to the EPA until the development consent has been granted”.
There is integrated development, which is referred to in section 50. Integrated development occurs, as I understand it, when there are different authorities governing activities in relation to particular land. It might be a use which is trying to be made of land which is close to a river, so that State Water might have an interest and also the local council. So the purpose of this is merely to make it easier for business.
What happens is that when you put in a development application apparently there is a little box that says “Do you want this to be integrated development?”, you tick the box and then when that happens what the council has to do, it receiving the development application, it has to consult with the other authorities – State Water, say, or it might be the EPA – and in relation to the licence that it may have to give – that is State Water or EPA, if it is a pollution licence it will be the EPA – it has to consider first of all whether or not it will grant a licence, if it is applied for later on – not then but later – because they are operating ahead of the development consent.
On the other hand it might say “Yes, we’ll grant a licence but it’ll be on these conditions”, and so it tells the council. Those conditions are set in concrete in a sense because when the development consent is granted and they apply for their licence under this Protection of the Environment Act, the EPA in the instance I have given, or the State Water in the instance I have given, cannot depart from the conditions. On the other hand, they are not bound to be easy on the developer. If the developer wants to appeal the developer can appeal those conditions after the licence is granted. So it is very much a matter of co‑ordination.
Now, that is referred to – and I know it sounds a bit complex, but Justice Basten seems to place some reliance on it. We say that you cannot get anything out of that integrated development provision. Now, with that rather garbled exposition of the sections, your Honours, could I just take you to them quickly.
Section 43 deals with the nature of licences that can be granted. Section 45 is very important because it outlines the matters to be taken into consideration. Section 47 deals with one type of licence, scheduled development work. Scheduled development work means work at any premises at which scheduled activities are not carried on that is designed to enable scheduled activities to be carried on. So there is a connection there because what we are concerned with here are scheduled activities. That is why I have referred to licensing in relation to scheduled development work.
Then there is licensing under section 48, “scheduled activities (premises based)”. Now that is this case, and the offence – here is the injunction:
A person who is the occupier of any premises at which any such scheduled activity is carried on is guilty of an offence, unless the person is, at the time that activity is carried on, the holder of a licence that authorises that activity to be carried on at those premises.
Then section 53 deals with:
An application may be made to the appropriate authority for the issue of a licence.
It provides for the form of application. “Application for transfer”, that is likewise dealt with. Then 55:
The appropriate regulatory authority may grant or refuse an application -
That deals with transfer and issue together, and 56 the premises to which it applied. Section 57 enables licence fees to be extracted. I mention that because there are activities called “fee-based activities” and I will come to those when we look at the licence variation. Section 63 says:
A licence may be issued subject to conditions or unconditionally.
(2) A condition cannot be attached –
et cetera. We say that that is one regime – issue and transfer. Then you come to variation:
(1)The appropriate regulatory authority may vary a licence –
that is 58 –
(2)A variation includes the attaching of a condition to a licence . . . the substitution of a condition, the omission of a condition or the amendment of a condition.
So it does not really need section 63, one might think –
(3)A licence may be varied on application by the holder of the licence or on the initiative of the appropriate regulatory authority.
So it can be done by the EPA, for instance –
(4)A licence may be varied at any time . . .
(5)A licence is varied by notice in writing –
and that is the document that will come up a little later –
(6)If:
(a)the variation of a licence will authorise a significant increase and the environmental impact of the activity authorised or controlled by the licence, and
(b)the proposed variation has not, for any reason, been the subject of environmental assessment and public consultation under the Environmental Planning and Assessment Act 1979,
the appropriate authority is to invite and consider public submissions before it varies the licence.
Now, this is a peculiar provision if, as we would submit, it is found that somehow section 50 operates on a variation because it is doubling up in a sense. But it says “for any reason”. Now, one might find that it could occur in one of the cases that I have mentioned, that is, the development consent has not been sought or the development consent is not necessary or the development consent has been waived because it is some public activity or some Commonwealth activity, that although it is polluting and would otherwise be subject to the Act, consent is not necessary. But under this provision, one would think, consideration might be given to it except perhaps constitutionally in relation to the Commonwealth, but that is another matter.
Now, the word “activity” is found in the dictionary at the back. It means:
an industrial, agricultural or commercial activity or an activity of any other nature whatever (including the keeping of a substance or an animal).
“Scheduled Activities” are found in Schedule 1, and the relevant ones here are “Mineral processing or metallurgical works for the commercial production or extraction of ores” et cetera, I will not read the lot. That is one of the scheduled activities that are conducted on these premises. Another is:
Waste Activities
(1) Hazardous, industrial or Group A waste generation or storage, being any activity that:
(a)is carried on for business or other commercial purposes, and
(b)involves the generating or storage of any one or more of the following types of waste:
(i) hazardous waste,
(ii) industrial waste,
(iii) Group A waste.
Well, that is another scheduled activity that applies to this operation, and dross is a hazardous waste within the definition of this Act. It is not a waste in terms of the Environmental Protection Assessment Act. That is purely consent to undertake a particular process, that is the process of dross. It is not called “waste” in that context. But in this context of this Act it is waste, it is hazardous waste and it is hazardous for the reason I explained earlier, that if it is exposed to moisture it could explode. Under Schedule 1, Part 3, “Types of hazardous waste” it is (1)(f):
substances which in contact with water emit flammable gases -
Now, another activity which relates to these premises is waste storage, transfer, separating or processing facilities, being waste facilities that store or transfer or recover by way of separating more than 30,000 tonnes per year. Each of those relates to activities on this land.
Going back to what I mentioned earlier, it does seem that there is a question, when you look at the licence variation, as to whether that last one, that is to say, “waste storage, transfer, separating or processing”, whether that was actually a scheduled activity under the original licence, the reason being that Alcoa could not find the original licence nor the EPA Act, and therefore, to find it one has had to subpoena documents and all the rest of it and there is no final copy of it. There are some drafts but no final copy. It is left in that state of indecision although there are – and we are not debating that these are there – there are admissions by us that we ask for a variation for a new scheduled activity.
With that explanation, I think I have to take your Honours, unfortunately, to this licence variation just to indicate to your Honours where you will find these provisions. Your Honours have a copy there somewhere. If your Honours go to page 1:
On 29 September 2000, the EPA received an application for the variation of the licence to allow the acceptance and use of dross from another Kaal premises. The EPA has assessed the application and has no objection to the dross being used in the rotary furnace.
Then at page 5. “scheduled activities”:
This licence authorises the carrying out of the scheduled activities listed below . . . The activities are listed according to their scheduled activity classification, fee‑based activity classification and the scale of the operation . . .
Scheduled activity
Mineral Processing or Metallurgical
Waste Activities -
If your Honours go back to page 2 you will find that the instruction as to how you read this document in terms of variations and basically it is if it looks like that which is in blue and struck out, it was in the original but it is there. If it is in green and it is underlined then it is added. There is nothing struck out under “Scheduled Activity” but – in other words, “waste facilities, store, transfer, separation”. That would have covered what we were trying to do and therefore we had a licence to carry on that scheduled activity, but what our problem was is that – I will take your Honours now to page 9. L5.1 provided:
The licensee must not cause, permit or allow any waste generated outside the premises to be received at the premises for storage, treatment, processing, reprocessing or disposal or any waste generated at the premises to be disposed of at the premises, except as expressly permitted by the licence.
So that was its original form and it remained in that form. In the judgment I think her Honour might have said that parts of L5.3 were added. For instance:
e) Substances which in contact with water emit flammable gases (aluminium salt slag, dross) –
L5.4 now reads:
The quantity of hazardous and/or industrial and/or Group A waste generated and/or stored at the premises must not exceed in any year –
and you go down to that green part in old L5.5 –
15000 tonnes per year.
L5.5Except as provided by any other condition of this licence, only the hazardous and/or industrial and/or Group A and/or Group B waste listed below may be treated, processed, reprocessed or disposed of at the premises.
Substances which in contact with water emit flammable gasses (dross) -
Your Honours, when we come back to section 58 what Justice Basten has said which is at 82:
The very existence of the prohibition in s 50(2) on the grant of a licence unless and until a relevant development consent has been granted, indicates an implied limitation on the scope of a variation. Accepting that s 58, dealing with variations, has no such express limitation, the proper construction of the statute suggests that the addition of a new scheduled activity to an existing licence cannot be done by way of variation if the effect is to permit the licensing of the activity absent the grant of a necessary development consent.
That seems to be the nub of his reasoning. He says:
For these reasons, the precise nature of the variation made in November 2001 was of critical importance . . . If the variation made involved an activity which was the subject of an existing development consent and did not, therefore, involve a controlled development for the purposes of s 50(1), the prohibition in s 50(2) was not engaged. On the other hand, if there were no sufficient development consent, and the activity was such that it constituted a “controlled development”, then the variation was invalid, not because s 58 was subject to s 50(2) but because such a variation could not be made under s 58 in any event. The order made by her Honour was arguably correct, but for reasons other than those upon which she relied.
The court went on, in effect, to dismiss the proceeding and dismiss the appeal on the basis of the confusion that had taken place. It is that confusion that I was referring to earlier when I was addressing your Honours in relation to leave to appeal.
I have explained to your Honours our submission that these Acts operate independently and complement one another. That being so, there is no harm done – absolutely no harm done if there is no timing provision in relation to variation. In other words, the licence is not invalid, as varied, but it is of no use to you unless you – if it relates to an activity, one might say be it scheduled or not, which requires development consent. That being the case, there is no necessary implication to be made in order to make the sections work. The timing is only intended, in our submission, to relate to that initial moment in time, or period of time, when the development consent is first being sought and not otherwise.
In the case of variation, if the licence has been granted and a development consent is necessary, as I have said, the licence is of no immediate value, but once the development consent is obtained the parallelism takes over and the two consents are there and the activity can then proceed.
The word “activity” is very broad. It can be an industrial activity. On the other hand, it can be an activity which is within a scheduled activity because when you look at the definitions of “scheduled activity” they are all, of course, premised on being activities. They are “waste activities”, they are “waste facilities” where certain things are done – certain activities are carried out. So the word “activities” in there could mean an industrial activity, a very broad meaning.
On the other hand, if you are going to relate it to some words that follow it says “activity authorised”. Does that enable you to say it must be a scheduled activity? We would say if that stood alone that could be right but it goes on and says “activity authorised or controlled”. You can have an activity that is not a scheduled activity which is controlled by the licence. It might be the emission of certain pollutants in certain quantities, but it is controlled and it is not a scheduled activity in itself. Because of the breadth of the word “activity” or the narrowness of it, depending on how you apply that word “activity” in there, then the meaning of the section changes.
We would submit it should be given the meaning which the Act gives to the word “activity” that it does not mean scheduled activity, it means activity because it has to meet both the word “authorised” and the word “controlled”.
If that is so, then there is no implication in this section 58 which of necessity makes a requirement that there be a timing. It might be said a licence that relates to control development must not be granted is apt to cover a variation. That is not how the Act treats the words. A licence is granted under – we would say it uses the word “issue” and it is carried through into section 63. That is the moment of grant. Section 55 is consistent with that notion because it deals with the grant or refusal of an application. It does not use the word “issue” there; it says “The appropriate regulatory authority may grant or refuse”. So the word “grant” in section 50(2) has its own dictionary in the Act. We would submit that that confines section 50(2) to the earlier part of the Act and you cannot simply construe it in itself in its terms, as it were, as referring to a variation.
The only way of marrying the ideas together is to use the approach of the Court of Appeal which we would say, for the reasons that we have given, was in error. In the dictionary “scheduled activity”, I should point out, means “an activity listed in Schedule 1”, which means “an industrial, agricultural or commercial activity”, et cetera, in accordance with the definition of “activity” listed in Schedule 1. So there was a consistency of meaning in relation to that. I mentioned earlier that Justice Basten had placed some reliance on integrated development.
GLEESON CJ: I think you dealt with that earlier.
MR ELLICOTT: We would submit in terms of the consequence anyhow – in other words, approaching it the way that Justice Pain did, the consequence was not invalidity and the way the questions were raised – this case was argued on the basis of two questions. The Court of Appeal has said what it said in that paragraph that I read, that Justice Pain had made the right order for the wrong reasons because the proper answer to the question, according to the Court of Appeal, was otherwise. That is to say that section 50 was a governing provision.
Her Honour, on the other hand, answered the question and agreed with us. If the Court of Appeal answered the question yes, it is invalid, then our submission would be that that is not correct, that the consequence is not invalidity, it is a case where Project Blue Sky considerations would determine otherwise, and we have set those submissions out in paragraphs 30 to 33 of our written submissions, your Honours. That matter would also have to go back to discretion.
GLEESON CJ: Thank you, Mr Ellicott. Yes, Mr Walker.
MR WALKER: May it please your Honours. Form 7 to which reference has been made your Honours will have noted does not contain anywhere or provide for the notification of the determination to describe the use, that is the development, to which consent has been given in the case of a consent. It reflects the possibilities under the statute for the grant of consent unconditionally, the grant of consent subject to conditions specified in the notice and the refusing of consent.
In the case of a grant it does not have a place to describe, for example, aluminium remelting facility. That, in our submission, is highly significant bearing in mind that the notice starts by being addressed to the applicant in a designated application, so development application number and then the number is left to be filled in. Then the statutory language that your Honours are now familiar with from section 91 is echoed because what is being determined is the application and the application is being determined not by an activity, use or development being consented to but, to use the statutory language of section 91, consent being given or refused “to that application”.
It follows that compliance strictly, not only in substance, strictly as well as in substance, with what the statute contemplated would tell the reader of the form 7 notice nothing whatever about the nature of the activity but the application would. The statutory scheme, as Mr Justice Bignold pointed out in Loreto, renders all of that both workable and convenient, no fossicking necessary, because the application will be kept with the notice of determination. Also, as Mr Justice Bignold pointed out in Loreto, the application must be, mandatorily, that is, accompanied by certain documents in certain cases. In our case it included the EIS.
So that by that means one can see that the statute never contemplated that the notice of determination itself could speak sufficiently without recourse to documents referred to in it to which it explicitly responded in order to know what was being consented to. Literally when one looks at form 7 and supposes a case of consent - assume an easy case, though a rare one, of unconditional consent – one would have the question asked: what am I allowed to do? The neighbour wondering about activities on the land, according to my learned friend’s argument, would go to the register, would see the application describing the activity, would note that that was consented to and that what was being done exceeded that use but, according to my learned friend’s argument, would not be allowed to look at the application. In order to prove that in support of an injunction, you have to be restricted to the utterly uninformative form 7 notification.
The only way that that absurdity is not in fact perpetrated in this case is by the accident – and it is only an accident – that it so happens that on 149, that is the beginning of Schedule A referred to on 148 as being where you will find the conditions specified, that after the repeated words of the granting of consent follows the expression “for an aluminium remelting facility generally in accordance with plans”, et cetera. They are not necessary statutory words at all. All you have to do in your statutory notice, as they do on 148, is to say “hereby grant consent conditionally to that application” and the application is designated, development application No 315, it is referred to in the operative and opening sentence:
Pursuant to . . . the Act notice is hereby given of the determination by the Council . . . being the consent authority, of the abovementioned development application relating to the land . . .
The development application has been determined by granting of consent ‑ ‑ ‑
GUMMOW J: You may be blessed in a way we are not. Do you have a copy of section 94(4) of the Environmental Planning and Assessment Act?
MR WALKER: I do not think I do, your Honour.
GUMMOW J: In Halglide 71 LGRA 215 at 219 Justice Hemmings said:
Section 94(4) provides that a consent shall be sufficient to authorise the use of the building for the purpose for which it was erected where the purpose is specified in the development application.
MR WALKER: It is section 91(4), your Honour. You will find that the print of the extracts I have given you, page ‑ ‑ ‑
GUMMOW J: So that is a mistype in the report.
MR WALKER: Yes, it is 91(4), consent to:
carrying out of development, being the erection of a building, shall be sufficient to authorise the use of the building –
It is found at page 64 in section 91.
GUMMOW J: Yes:
where that purpose is specified in the development application.
MR WALKER: Yes, which obviously is another demonstration that the statutory scheme works by not treating the development application as an early stage of the rocket that falls away never to be looked at again. It remains the defining statement of that for which consent was sought so that you can know its content when you see that consent was given. It is for those reasons, in our submission, that there is nothing in the proposition towards the end of his argument on this point advanced by my learned friend – I think I quote verbatim – that the document at appeal book 148 does not say consent is granted to the application.
That is exactly what is says, and that is why it is upon all fours with the authorities to which we drew attention in our written submissions. A form of consent that says “consent granted to this application” requires you to go to the application to answer the next question, so what does that mean I can do and cannot do?
GUMMOW J: Section 92 is important as well, is it not?
MR WALKER: Yes, your Honour.
GUMMOW J: Section 92 says:
Notice of a determination under section 91 shall be given to the applicant in the prescribed form and manner . . .
the notice referred to in subsection (1) shall‑
(a) indicate the reasons –
et cetera.
MR WALKER: You do not have to describe. The notice nowhere is said to require any description of what is and is not to be permitted by way of activity, conduct. That you will find in the application.
HAYNE J: Its real root may lie in 91(1)(a).
MR WALKER: Yes.
HAYNE J: The development application is to be determined by:
the granting of consent to that application ‑
and it is the application which is ‑ ‑ ‑
MR WALKER: Yes. That is the statutory language I was referring to when I first started this point in reply. The statute itself speaks not of consenting to the carrying out of development, not of consenting to certain conduct in certain places. It is consent to “that application” ‑ ‑ ‑
GUMMOW J: No, it is all yoked back to section ‑ ‑ ‑
MR WALKER: ‑ ‑ ‑ or refusing of consent to “that application.” That is the expression used. In our submission, for the reasons – I do not want to repeat what I said in-chief. That is why we tried summarily in‑chief to say that the older case law has been correctly understood and with a confined operation by reasoning, such as one does find by Mr Justice Bignold in Loreto to which attention was made, no error appears in his Honour’s approach in that authority at all.
Your Honours, much is sought to be made about the fact that Lot 23 is referred to in the Council’s letter. It is to be remembered that the form of application was rather more precise. It said “LOT NO. 23 (PART)” and one sees that – I drew attention to it in-chief – at page 53 at about line 22. The notion of land to which the development application relates can be seen again in the statutory language to which we have made reference, particularly throughout section 91(3).
In any event, the plans quite plainly show that it is not those parts of Lot 23 upon which there was “existing” – your Honours will recall that word – can reclamation plant structures on which consent was being sought by the application in 1981 for the remelt facility. The notion of “existing” obviously is this is what is already here for which we do not need consent, either to erect or use. That is already had.
GLEESON CJ: And, in respect of which, you cannot start imposing new conditions. That is the risk that you would run.
MR WALKER: And, in respect of which, we are entitled to proceed under the consents we have.
GLEESON CJ: If Alcoa had, in effect, reapplied in 1981 for consent in relation to that plant, then they would have run the risk of new conditions.
MR WALKER: Yes, quite so. It is not suggested in this case by the respondent that the 1980 consents do not inure to its benefit in relation to the can reclamation plant. Interestingly and significantly, it is not said that those consents authorise, that is permit, the processing of dross from Point Henry. It is said that the 1981 consent for this other part of the land is that which does it.
My learned friend, as it were, mocks as excessively vague, perhaps – his suggestion is it is an error – what the proponent for consent in the environmental impact statement which must accompany, that is there is no valid application unless it accompanies, the application. What they said about the site description – I drew it to attention in‑chief – my learned friend deals with it only by confessing geometric inadequacy on his side of the Bar table. It has nothing to do with measuring floor plans, which is what he seemed to be talking about.
There is an approximation given of 24,000 square metres which serves this purpose – it tells everyone that we are not talking about the whole of Lot 23. That was obvious anyhow because the proponent made it clear that they were only going for part of Lot 23. Furthermore, it is said to be rectangular in shape – that works if you leave out that irregular quadrilateral part that I drew to attention in‑chief upon which the existing can reclamation plant was based. It does not work if you include it.
Why would one leave out something as fundamental as site description, page 82 of the appeal book, in an EIS in construing what the consent means? Where else do you find where it is to be on Lot 23 even if it is not part Lot 23 for which the application was lodged?
In our submission, there is absolutely nothing in the point, never put quite explicitly, that somehow the use of the expression, “Lot 23” in the consent cast this development consent in what would appear to be intended to be suggested as a subsuming effect. Of course, the respondents do not say it is subsumed because if that were so then there would be many activities at the can reclamation plant for which there is no express permission at all.
The way my learned friend seeks now to get around those textual indications in these consent documents is to propose that your Honours should understand what he insists is of the ordinary English of “remelt” or “remelting” in a way which, respectfully to adopt something raised by Justice Crennan, appears to involve this proposition that we are to understand that what happens in a rotary furnace in the can reclamation plant is remelting and we are to understand that what happens to the product of that in the melting furnaces, properly so-called and specifically so‑called, in the 1981 facility, that is also remelting and the fact is they are different.
The word “processing” is used in the places that your Honours have been taken by both of us in address. “Processing” is used to describe what happens to the dross in the rotary furnace with one exception to which I will be coming in a moment. Nowhere is the word “remelt” used in any of the documents to describe what happens in the rotary furnace.
Justice Gummow asked my learned friend whether by preference there could be some findings referred to when my learned friend was embarking, amongst other things, on the proposition that somehow dross was not waste, that dross was a valuable resource, et cetera. There is a finding to the contrary of that and there has been no serious attempt to overcome it, page 197 – there is no departure from this in the Court of Appeal – one finds in paragraph 32, last sentence:
the new remelt facility at Yennora North, the subject of the development consent, was to be able to dispose of solid waste – that is, dross – into the rotary furnace -
And then, over the page, on pages 198 and 199, Justice Lloyd reproduces from the agreed statement of facts and your Honours see in (i), about line 35:
The remelting of various types of aluminium materials –
and I stress aluminium materials, not aluminium oxide – you cannot put dross into the melting furnaces, you get it off from the top. Then (iii) is:
The processing, that is, melting –
That is the word that comes closest to what my learned friend meant but the distinction is quite clear -
in a rotary furnace (now called RF3) of used beverage containers (that is, aluminium cans), dross pot bottoms, crucible pourings and other types of aluminium scrap to produce molten aluminium
Your Honours, in our submission, it is therefore not possible, either by way of a Bar table ordinary English attempt, or by reference to the evidence or findings in this case, for the respondent to make good the proposition that what was going on in the rotary furnace, in the so‑called can reclamation plant, made it part and parcel of the remelt facility for which consent was given in 1981. That is quite apart, of course, from the fact that there are references throughout the application documents of the kind to which attention was drawn in‑chief which plainly, physically and as a matter of process as well as a matter of consent and dating, distinguish between the old, that is the can reclamation plant and the new, that is the aluminium remelting facility. For example, at 51, you will see the reference to the aluminium remelting facility in what is clearly the new building.
Paragraph 8 of my learned friend’s submissions then was elaborated today. There is error there unless one assumes that which, in our submission, cannot be made good, namely, that the rotary furnace is part of the aluminium remelting facility. If one assumes that, then what is said there is correct but it is not demonstrated by that mere statement.
At pages 342 to 343, the agreed facts to which my learned friend went, in our submission, as found by Justice Lloyd in the passage to which I have just taken your Honours at 198 to 199, does distinguish between manufacturing processes of a number of different kinds and at 343 in paragraph 18, those “Manufacturing processes”, in the plural, include things which are discretely described, one distinctly from another, and I draw to attention of course the “re-melting” in (a) and the “processing (melting)” in (c) and that is processing which produces material which will then go to the melting furnace which is what has been described in (a), a different process.
GLEESON CJ: Mr Walker, what did Justice Basten regard as the consent pursuant to which the activities involving the rotary furnaces are carried on?
MR WALKER: Your Honour, the best answer is that he regarded it, because he took a “single overall development” approach he regarded it as a combination of all of the consents, plus silence.
GUMMOW J: It is the plus silence which is the Hohfeldian conundrum we have looked at this morning.
MR WALKER: Yes. The silence is, of course, what my learned friends apparently still refer to, namely, the lap of any express restriction on the provenance of dross. Its single overall development reference comes in Justice Basten’s culminating observations at 228, line 10.
Your Honour the Chief Justice asked my learned friend a question similar to the one asked of me in relation to Stage 1, Stage II, et cetera. Could I draw to attention, I am not sure that it has yet been drawn to your Honour’s attention what is found at 155 of the appeal book. This is in 1984, so it is after the events in question and it is another step. It is for what is called at line 35, “the proposed Stage II remelt facility”.
I do not throw that in just to add, as it were, more variation to these references but to make good the suggestion I advanced this morning that the remelt facility has itself stages just as the can reclamation plant had stages and the second stage of the can reclamation plant was, of course, the introduction of a second rotary furnace by the part cannibalising of an old one, to which reference has been made. It is not as if the remelt facility can be shown from those texts to be understood as being Stage II to the can reclamation plant Stage 1. They appear, themselves, to have different stages. On the other hand, we would not seek to be too categorical about that.
I may have missed something in the copious record. I think it was today in my learned friend’s address the first time that the processing of dross has been said to be included in the notion of remelting and thus permitted, presumably by the printing of “remelting”, at the top of appendix A of the notification of determination of application. That must be the reasoning because as my learned friend protests, you cannot even go to the application, you cannot go to the accompanying EIS so you will not see anything there, and your Honours know that there will not be anything there saying foreign dross can be brought in, so it must be my learned friend is saying, “That is remelting, this is a remelting facility, there is nothing to stop me from remelting whatever I like”.
That is the importance of identifying the land to which the development application relates because as soon as that is clearly understood, as soon as one looks at the application and how it described the processes, one can see that there was never any suggestion that there would be foreign dross processed.
Your Honours, next could I go to pages 108 and 109 to respond to the way in which my learned friend answered Justice Heydon’s question about the effect of the incorporation by reference through condition 19. It will be recalled that so-called items 4.2 and 4.3 which are called up by condition 19 which requires that:
Disposal of liquid effluents and solid wastes being strictly in conformity with the details set out in –
those items. I stress “disposal of those things”. Now, 4.2, starting at the foot of 107, every single item, in our submission has to do with disposal. It is not only where the word itself is used, it is the process of getting rid of material and it also involves the details – and your Honours will recall the word “details” in condition 19 – the details of how the material, as it were, comes to be where it is requiring disposal in the stipulated fashion, thus, for example, in “Stormwater drainage” the water which runs off can be dealt with by going to the “adjacent creek drainage easement” because it is not water that would contain the leachate if the “dross produced from the remelt process” was not “under weatherproof cover.”
So disposal of liquid effluent runoff to the creek, as a matter of detail, clearly requires that it be the runoff generated from a roof, a weatherproof roof, over dross storage and if there was not that weatherproof roof over dross storage there would be a leachate produced – a solid waste leachate produced – which obviously would treat a different detailed approach to a disposal of stormwater.
Then we come to 4.3, the relevant one. Its whole heading is “Generation and Disposal of Solid Waste” and the first of its items, 4.3.1, its sub‑items, is “Sources and quantities”, sources and quantities obviously, of solid waste. This is detail which plainly condition 19 is calling up and requiring to be observed in order to ensure propriety in the handling of this kind of material – disposal.
After the proponents boast about the rate of dross formation being significantly reduced in a new remelt plant, one finds at the top of page 109 that there is then a capacity referred to and that capacity is then immediately linked to the process which as a matter of detail this item is saying is to occur to the dross because the anticipation is expressed that, “the volume of slag and bag house dust” which is solid waste, of course, “will remain at current levels.” What from? It will be generated from dross treatment in the adjacent rotary furnace complex.
So the dross is disposed of by being subject to what is called “dross treatment” in the adjacent rotary furnace complex. For EIS purposes, it has being sure that that treatment will itself produce solid waste but not in any more number. So there is disposal in 4.3.1. 4.3.2 refers to the same requirement, “Dross handling”. The “Dross tubs” - we know that they have to be kept “under weatherproof cover”, see 4.2.4. That is referred to in 4.3.2 as part of a process of its physical transport from the top of the melting furnaces into dross tubs:
under weather proof cover to the dross storage area for cooling prior to charging into the rotary furnace -
charging into the rotary furnace for the treatment referred to just an inch and a half above, and in our submission, it is therefore not only 4.3.3 which contains the details which must be strictly complied with in relation to the disposal of liquid effluents and solid waste so far as it concerns dross. 4.3.3. is just the end of a process which involves dealing with the waste dross and by a treatment which itself will produce that which is then described in 4.3.3.
It has until today never been suggested that 4.3.2 had no effect on what could or could not be done with the dross produced at Yennora. It is not even clear whether today it is being suggested that has been regulatory effect.
GLEESON CJ: Is it your argument that it is the 1980 consent that applies to the activities carried on on that part of Lot 23 on which the rotary furnaces stand?
MR WALKER: Principally, yes, your Honour, subject to the conundrum Justice Hayne raised with me this morning where the rotary furnace is, as it were, conscripted as section 91 permits by a condition, is conscripted into the waste disposal for the 1981 consent but, yes, it is the 1980 consents that are the primary place to look for what can go into the rotary furnaces, what can you do on that part of the land.
GLEESON CJ: Subject to that conscription that you mentioned, there was in 1981 no application for any further consent in relation to what was going on on that part of Lot 23?
MR WALKER: No, not as we read the documents, no.
GLEESON CJ: Therefore, the question is whether anything that happened in 1981 now permits what is going on in the rotary furnaces in relation to offsite dross?
MR WALKER: That is right, and nothing is pointed to by my learned friends except these words “remelting facility”. That is all that is pointed to. No other text is referred to.
GLEESON CJ: As I understand it, part of his argument is that in 1981 those rotary furnaces became part of a larger activity called “remelting of aluminium”?
MR WALKER: Yes, indeed, the remelting is what goes on in the melting furnaces into which one does not put dross, foreign or local. So being part of a remelting facility does not help him. In many ways, what my friend puts about that is, with great respect, correct, that by the conscription method – to use that metaphor I have advanced – the rotary furnace did become part of a process. It is part of the waste disposal process, and it produces part of the feedstock that goes into the remelt facility, namely the aluminium recovered from the dross produced by the remelt facility itself.
It is only in that sense that it is part of an overall process. It does not become part of the physical facility. It is described correctly as the adjacent facility. Of course it is interrelated, no one doubts that. That does not mean, however – I am sorry, you would still need to find text or implication in a consent document in order to find permission to put foreign dross into the rotary furnace.
Now, foreign dross is not cans, foreign dross is not clean aluminium and foreign dross is not local dross, and those are the only sources of material to go into rotary furnace or eventually into melting furnace that are mentioned in any of the documents, the formal consent documents or those which can be looked at in order to understand what they mean.
Your Honours, that is all I wish to say about the appeal. The relation between the appeal and the application does not present any of the complications my learned friend sought to press upon you. Clearly, if we lose the appeal, your Honours should dismiss the application for special leave without further ado.
If we win the appeal, then this was a case, in our submission, where we should have won before Justice Pain, we should have won before the Court of Appeal. There is none of the difficulties about the case being an appropriate vehicle because these premises were admitted and would thus appear clear for determining the question about sections 50 and 58, namely, that putting foreign dross, Point Henry dross into the rotary furnace needed development consent. That is admitted. It is not resiled from now, and if we win the appeal then they did not have it.
The next question was whether they had obtained what they called a variation of their licence to permit that because if they had that was invalid. They would not be able to go out and say, “We have a licence to do this”, because if we were correct and if Justice Basten’s reasoning on the point be correct, Court of Appeal’s reasoning on the point be correct, section 58 forbad that variation being granted.
I do not want to repeat what I have already said in‑chief about the argument. Nothing in what my learned friend has put about the statute, be it a timing device or otherwise, in our submission, appropriately deals with the trenchant simplicity of the statutory words, “a licence must not be granted”, et cetera, et cetera, and that is why the reasoning is straightforward and it is obviously an important point, and it is matter which ‑ ‑ ‑
GUMMOW J: But it is said, is it not, that there is a third batch of litigation out there as well that is pending, and that that might cure all this from your opponent’s point of view?
MR WALKER: It may or may not, your Honour. It certainly would not – at the moment we have a finding, in effect – I will start again, the status of the licence is, in our submission, one which requires its invalidity to be determined. There was a live, real contest made about that. It is not presently determined by the Court of Appeal, the status of that licence, because of the errors Justice Basten committed, as to whether or not there was in fact a variation.
The fact of a variation being sought, the fact of a variation being made was admitted. There has been no attempt to resile from that. My learned friend twice said he was not going to resile from it. That means
there is no problem with the vehicle in relation to that. At page 246 in paragraph 86 Justice Basten disposed, including with an adverse costs order, of the proceedings about the licence by saying that there were two questions that needed to be addressed which were not. They were both the subject of admissions. They were not the subject of a notice of appeal. The question was quite simply, if you do not have development consent for this, does that affect this so‑called variation, and that involved interpreting 50, interpreting 58 and applying it to facts which are pellucid by the time you get to that point; no detail, no complication.
Finally, the question – I am not quite sure whether my learned friend meant that the Blue Sky area was what evoked what he called “a discretion” which would require to be dealt with in those proceedings, but there is no discretion involved. It is simply a matter of statutory interpretation and invalidity would simply follow, and there is no discretion to be determined at all. May it please the Court.
GLEESON CJ: Thank you, Mr Walker. We will reserve our decision in this matter ‑ ‑ ‑
MR WALKER: I am so sorry, your Honours, I have neglected to draw to attention – there is one thing in the dictionary – I do apologise – of the Act to which I think attention should be drawn. The definition of “licence application” ‑ ‑ ‑
GUMMOW J: Which Act?
MR WALKER: That is the Protection of the Environment Operations Act 1997. In the dictionary “licence application” means “an application for the issue, transfer, variation or surrender of a licence” and, in our submission, that is of some significance in supporting the reasoning of the Court of Appeal. May it please the Court.
MR ELLICOTT: Your Honours, I meant to inform your Honours that the Act has been amended. Section 50 has been amended to add the words “or varied” to cover this point, and that may be relevant to a question of leave to appeal. I meant to mention.
GLEESON CJ: Thank you.
MR WALKER: I am so sorry, your Honours, there is another note I should have given you. At appeal book 277 and 280 there are references in correspondence which make it crystal clear that the variation sought was to add as an activity “Waste Storage, Transfer, Separating or Processing” among others, No 84. I simply wanted to draw to attention that you should not put too much faith in the EPA’s rather self‑important colour‑coding, because there is no colour‑coding for that you will find at page 5 of 52 of the document my learned friend has handed up.
GLEESON CJ: We will reserve our decision in these matters and we will adjourn to reconvene tomorrow in two divisions at 9.30 am for special leave applications.
AT 5.06 PM THE MATTER WAS ADJOURNED
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