Weston Aluminium Pty Limited v Environment Protection Authority and Anor [No 2]

[2005] NSWLEC 698

Land and Environment Court

of New South Wales

CITATION:	Weston Aluminium Pty Limited v Environment Protection Authority & Anor [No 2] [2005] NSWLEC 698
PARTIES:	APPLICANT: Weston Aluminium Pty Limited FIRST RESPONDENT: Environment Protection Authority SECOND RESPONDENT Alcoa Australia Rolled Products Pty Limited
FILE NUMBER(S):	40149 of 2005
CORAM:	Pain J
KEY ISSUES:	Construction and Interpretation :- construction of environment protection licence - whether development consent required before licence variation allowed Estoppel :- whether judgment in related proceedings operates as an issue estoppel Words and Phrases :- licence application
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 124 Interpretation Act 1987 s 11 Protection of the Environment Operations Act 1997 s 3, s 43, s 48, s 49, s 50, s 58, s 252
CASES CITED:	Auburn Municipal Council v Szabo (1971) 67 LGRA 427; Blair & Ors v Curran & Ors (1939) 62 CLR 464; Hubertus Schuetzenverein Liverpool Rifle Club Limited v Commonwealth (1994) 85 LGERA 37; Stebbins v Lismore City Council (1998) 64 LGERA 132; Tipfast Pty Limited v South Sydney City Council (2002) 120 LGERA 292; Weston Aluminium Pty Limited v Alcoa Australia Rolled Products Pty Limited [2004] NSWLEC 551
DATES OF HEARING:	14/11/2005 15/11/2005
DATE OF JUDGMENT:	12/09/2005
LEGAL REPRESENTATIVES:	APPLICANT: Mr P Tomasetti (barrister) SOLICITORS: Kanjian & Co FIRST RESPONDENT: submitting appearance SECOND RESPONDENT: Mr R Ellicott QC and Ms S Duggan (barrister) SOLICITORS: Holding Redlich

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

9 December 2005

40149 of 2005 Weston Aluminium Pty Limited v Environment Protection Authority and Alcoa Australia Rolled Products Pty Limited

JUDGMENT

1 Her Honour: In these Class 4 proceedings, the Applicant is challenging the variation by the First Respondent (“the EPA”) of Environment Protection Licence no. 642 (“licence 642”) held by the Second Respondent. The EPA (now the Department of Environment and Conservation, but hereafter referred to as the EPA) issues environment protection licences and licence variations pursuant to the Protection of the Environment Operations Act 1997 (“the POEO Act”). It has filed a submitting appearance save as to costs.

2 The Applicant’s Class 4 Application seeks a declaration and consequential order in the following terms:

A declaration that any Licence or Notice of Variation of Licence issued by the first respondent to the second respondent pursuant to the Protection of the Environment Operations Act 1997 (the “Act”) which varied the second respondent’s Environment Protection Licence No 642 in so far as they purport to licence and permit “waste storage, transfer, separating or processing”, being a waste facility that allows the acceptance and use of dross from the second respondent’s Point Henry facility in Victoria at the second respondent’s premises described in the schedule hereto, has been issued in breach of section 50(2) of the Act and as such is void and of no effect.

3 The Second Respondent is the lessee and occupier of land at Yennora described as Lot 220 DP 703309, Lot 24 DP 606744 and Lots 6A, 7A, 8A, 9A and 10A DP 21070 (“the Yennora premises”). The Second Respondent manufactures aluminium products on the Yennora premises. Manufacturing processes include:

(a) the remelting of various types of aluminium materials (including primary aluminium ingot, clean aluminium scrap material and aluminium obtained from the rotary furnace);

(b) the rolling of the remelted aluminium into thicknesses appropriate for the different types of aluminium product produced (namely can stock, sheet metal and aluminium foil);

(c) the processing (melting) in rotary furnace 3 (“RF3”) of used beverage containers (aluminium cans), dross, pot bottoms, crucible pourings and other types of aluminium scrap to produce molten aluminium (which is then used in the melting furnace); and

(d) the preparation of the rolled product into forms suitable to the intended purpose of that product.

4 From early 1974 until early 1980, dross produced on site at Yennora South was processed in rotary furnace 1 (“RF1”) at Yennora South. With the commissioning of rotary furnace 2 (“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. Aluminium obtained from the rotary furnaces at Yennora North was and is fed into the remelt furnaces at Yennora North.

5 In 1996, the Second Respondent purchased the Yennora premises with Kobe Steel Australia Pty Limited, under the joint venture name of KAAL Australia Pty Limited (“KAAL”). In December 2001, KAAL replaced existing rotary furnaces at Yennora North, being RF1 and RF2, with a new rotary furnace know as RF3. In 2003, the Second Respondent acquired its joint venturer’s interest in KAAL and subsequently changed to its present name.

6 Since about 2002, the Second Respondent has processed dross, crucible pourings and pot bottoms from Point Henry, Victoria in RF3 at the Yennora premises.

Alleged breach

7 The Applicant alleges there has been a breach of the POEO Act. On 21 September 2000 KAAL applied for a variation to licence 642 to include a new scheduled activity being “waste storage, transfer, separating or processing” and to amend licence 642 to allow the processing of dross from the Point Henry smelter operation in RF3 at Yennora North (“the application for variation”).

8 On 29 November 2001, the EPA issued a Notice of Variation which, inter alia, purported to vary licence 642 to include as a new scheduled activity “waste facility” being “waste storage, transfer, separating or processing”. “Dross” was included as a waste material which could be stored and/or processed (a new “scheduled activity”). There is no reference in the licence document to where any dross is to come from.

9 In the matter of Weston Aluminium Pty Limited v Alcoa Australia Rolled Products Pty Limited [2004] NSWLEC 551 (matter no. 41622 of 2004), Lloyd J held at [40] – [41] that RF2 located in the can reclamation plant erected on land formerly comprising Lots 1, 3 and 4 of DP 533033 and Lots 6A, 7A, 8A, 9A and 10A of DP 21070 at Yennora North pursuant to development consent 80/40, could only be used for the treating, processing or reprocessing of used beverage cans and aluminium dross produced by stage one of the remelt facility erected on Lot 23 DP 606744, pursuant to the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) in accordance with development consent 81/254. His Honour held at [41] specifically that dross from the Second Respondent’s Point Henry facility could not be processed at the Yennora premises.

10 The Applicant argued that as a result of Lloyd J’s decision the processing at the Yennora premises of dross produced and imported from the Point Henry facility required development consent pursuant to the EP&A Act. As the Second Respondent has not obtained development consent for the processing of dross imported from the Point Henry facility, due to the application of s 50(2) of the POEO Act, the EPA was not able to approve the variation of licence 642 under s 58(5) of the POEO Act. The Applicant lodged development application no. 2005/0674 with Holroyd City Council on 4 March 2005 to procure development consent for the activities engaged in by the Second Respondent which are the subject of these proceedings. The development application has yet to be determined by Holroyd City Council.

11 In an interlocutory application for summary dismissal in these proceedings, Bignold J considered whether the current proceedings should be summarily dismissed as vexatious or frivolous because they raised the same issues as in Weston Aluminium Pty Limited v Alcoa Australia Rolled Products Pty Limited [2004] NSWLEC 551 (matter no. 41622 of 2004) before Lloyd J. Bignold J considered at [13] – [14] that these proceedings involved a separate issue, namely a breach of s 50(2) of the POEO Act, which was not raised in the earlier proceedings, hence the hearing before me. At [17] – [24], Bignold J considered that if the Court did find that there was a relevant breach of the POEO Act, the question of the exercise of the Court’s discretion to grant a remedy pursuant to s 124 of the EP&A Act in the matter before Lloyd J, and pursuant to s 252 of the POEO Act in the present proceedings, remained. His Honour held it might be preferable for that common issue to be determined concurrently by the Court with respect to the issue of discretion.

12 While this Class 4 Application seeks a declaration that the variation of licence 642 is null and void and a consequential order, the Applicant accepts there will need to be a separate hearing about whether the Court should exercise its discretion to grant such relief, as identified by Bignold J. Accordingly, I am asked in these proceedings to make findings in relation to several legal issues in relation to the variation of licence 642.

Relevant legislation

13 Chapter 3 of the POEO Act sets out the legislative regime in relation to the issuing of environment protection licences. Section 43 of the POEO Act provides that environment protection licences may be issued to authorise the carrying out of a scheduled activity as required by s 48 and s 49 of the POEO Act. Sections 48(2) and 49(2) of the POEO Act provide that it is an offence to carry out scheduled activities (premises-based and not premises-based respectively) unless the person is the holder of a licence that authorises that activity to be carried on. The Dictionary to the POEO Act defines “scheduled activity” as those activities listed in Sch 1. Schedule 1 includes the following activities:

Waste facilities
(1) A waste facility that is of any one or more of the following classes:
…
(d) waste storage, transfer, separating or processing facilities , being waste facilities that store or transfer, or recover by way of separating or processing, more than 30,000 tonnes of waste per year,
…

14 Section 50(1) of the POEO Act provides that development that cannot be carried out without development consent under the EP&A Act is called “controlled development”. The parties agreed that the scheduled activity in this case, namely the “waste storage, transfer, separating or processing” and the processing of dross from the Point Henry smelter operation in Victoria in the rotary furnace at the Yennora premises requires development consent.

15 Section 50(2) states:

A licence that relates to controlled development must not be granted by the appropriate regulatory authority, unless development consent has been granted for the controlled development. However, this section does not prevent the consideration of a licence application by the appropriate regulatory authority before development consent is granted.

16 Section 58 of the POEO Act provides for the variation of licences as follows:

(1) The appropriate regulatory authority may vary a licence (including the conditions of a licence).
(2) A variation includes the attaching of a condition to a licence (whether or not any conditions have already been attached), the substitution of a condition, the omission of a condition or the amendment of a condition.
(3) A licence may be varied on application by the holder of the licence or on the initiative of the appropriate regulatory authority.
(4) A licence may be varied at any time during its currency, including on its being transferred to another person.
(5) A licence is varied by notice in writing given to the holder of the licence.
(6) If:
(a) the variation of a licence will authorise a significant increase in 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 regulatory authority is to invite and consider public submissions before it varies the licence.

17 Two issues arose for determination in these proceedings:

(1) Does s 50(2) of the POEO Act apply to the variation of licences pursuant to s 58 of the POEO Act?
(2) If s 50(2) does apply to the variation of a licence under s 58, is the existence of development consent a jurisdictional fact under s 50(2) of the POEO Act?
Interpretation of environment protection licence applications under the POEO Act

18 Before considering the issues it is first necessary to resolve what relevant documents constitute licence 642 and which documents may be referred to in determining the scope of the variation. The Notice of Variation dated 29 November 2001 issued by the EPA to KAAL stated the following:

NOTICE OF VARIATION OF LICENCE 642
BACKGROUND

(a) KAAL AUSTRALIA PTY LTD t/as (“the licensee”) is the holder of environment protection licence 642 for Scheduled Activity – Premises Based (“the licence”) under the Protection of the Environment Operations Act 1997 (“POEO Act”).

(b) 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.

(c) The licensee, in an email dated 30 March 2001, requested that this licence be varied to include additional conditions for new Melter No 8 [sic].

(d) Upon examination of the licence administrative changes were made to some of the conditions.
VARIATION OF LICENCE 642

1) By this notice the EPA varies licence 642 as set out in the Appendix. (for licences with a lot of changes and where the whole licence document will be in the appendix: The Appendix is a copy of the licence marked with the variations that are made to it by this notice. (for licences with a small number of changes where only the conditions will be printed: The Appendix is a copy of the provisions of the licence which are varied by this notice, marked with the variations that are made to them.

2) The variations to the licence are indicated in the following way:

· if a strike through mark appears through any word or other text (eg. Solids or) this indicates that the word or other text is deleted from the licence by this notice; and

· if a double underline appears under any word or other text (eg. must be treated) this indicates that the word or other text is added to the licence by this notice.

Note: Section 84(2) provides that a variation to a licence does not operate until

· the expiry of the period of 21 days after the notice of the decision to vary the licence is given to the licensee, or

· if an appeal against the decision is lodged, until the Land and Environment Court determines the appeal, or

· the licensee notifies the EPA in writing that no appeal is to be made against the decision to vary the licence,

whichever first occurs.

(This notice is issued under section 58(5) of the Protection of the Environment Operations Act 1997)

…

19 The Notice of Variation attaches as an appendix all the conditions of licence 642 as varied. Relevant conditions under the heading “Waste” are as follows:

L5.1 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.

L5.2 This condition only applies to the storage, treatment, processing, reprocessing or disposal of waste at the premises if it requires an environment protection licence.

L5.3 Except as provided by any other condition of this licence, only the hazardous and/or industrial and/or Group A waste listed below may be generated and/or stored at the premises.

a) --Waste mineral oils unfit for their original intended use-;

b) Waste oil/water, hydrocarbons/water mixtures or emulsions-;

c) Filter cake-;

d) Residues from industrial waste treatment/disposal operations- ;and

L5.4 The quantity of hazardous and/or industrial and/or Group A waste generated and/or stored on at the premises must not exceed 15 000 tonnes at , in any [sic] one time .

L5.5 Except 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 year , 15 000 per year.

L5.5 Except 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 at the premises.


Substances which in contact with water emit flammable gases (dross)

L5.6 The quantity of hazardous and/or industrial and/ or Group A and/or Group B waste treated, processed, reprocessed or disposed of at the premises must not exceed 5000 tonnes per year.

20 Under the heading “Administrative conditions” is the following table. The entries in italics are new entries:

A1.2 This licence authorises the carrying out of the scheduled activities listed below…

Unless otherwise further restricted by a condition of this licence, the scale at which the activity is carried out must not exceed the maximum scale specified in this condition.

Scheduled Activity

Mineral Processing or Metallurgical

Waste Activities

Waste Facilities – store/transfer/sep

Fee Based Activity Scale

Secondary Aluminium Production (58) 10000 – T produced

Waste Storage, Transfer, Separating 0 – All
or Processing (84)

Hazardous, Industrial or Group A 500 – T
Waste Generation or Storage (73)

21 Prior to variation, the licence did not allow the processing of any waste generated outside the premises including dross at Yennora (see par L5.1 and L5.2 of the licence). Conditions L5.3 to L5.6 inclusive are new conditions. After the licence was varied the prohibition on processing waste in L5.1 was displaced by par L5.3, L5.4, L5.5 and L5.6. That variation and the addition of the new scheduled activity of “waste facilities” permits the receipt, storage, treatment, processing and disposal of “waste”, as defined by par L5.3 and L5.5, at Yennora. Licence 642 does not state where that waste (including dross) is to come from.

22 The application for variation states under the heading of “Details of other variations” that:

Reason for the change

To allow for use of dross from Point Henry KAAL in the rotary furnace at Yennora KAAL site (see cover letter for further details).

23 The cover letter to the application for variation states:

The application to vary our licence has been made to include a new scheduled activity no. 84 “Waste Storage, Transfer, Separating or Processing” and amended or deletion of condition no. L5.1, to allow the acceptance and use of dross from our Point Henry Kaal facility at Yennora in our rotary furnace.

Applicant’s submissions

24 In opening submissions the Applicant’s counsel argued that a commonsense approach should be adopted in determining the scope of the variation. It was logical that the application for variation should be considered in order to clarify what was applied for. No authority was relied on to support this argument.

25 Alternatively, the same approach should be taken as applied to the strict construction of development consents by analogy. This approach meant there were more limited circumstances where one would look to the application for variation but it would still be necessary in this case because the Notice of Variation expressly refers to the application for variation at Background (b) (see extracts of the Notice of Variation at par 18 above).

26 In reply, the Applicant’s counsel argued that a statutory interpretation approach to the definition of “licence application” in cl A4.1 of licence 642 should be adopted based on the definition of “licence application” in the Dictionary to the POEO Act. Pursuant to s 11 of the Interpretation Act 1987, which states that words and expressions that occur in an instrument have the same meanings as they have in the Act under which the instrument is made, the meaning of “licence application” in the POEO Act applies to the meaning of “licence application” in cl A4.1 of licence 642. Clause A4.1 states that work must be carried out in accordance with the “licence application”. The definition of “licence application” in the POEO Act includes an application for variation of a licence. Accordingly an application for variation of a licence is included in the reference to application in cl A4.1.

Second Respondent’s submissions

27 The Second Respondent argued that in determining which documents to refer to in interpreting licence 642 the Court should apply development consent cases such as Auburn Municipal Council v Szabo (1971) 67 LGRA 427 and Tipfast Pty Limited v South Sydney City Council (2002) 120 LGERA 292 as environment protection licences were analogous to development consents. Following these cases, the Second Respondent argued that the Court should only look at the Notice of Variation and licence 642 itself with the relevant changes. There is no need to refer to the application for variation if these documents are clear, as they are in this case. Licence 642 allows for dross to be brought to the plant from anywhere in Australia because it does not specify where dross is to come from and the provisions of L5.3 – L5.6 allow for, inter alia, storage of waste at the premises. Other provisions of the licence, such as O5 – O8, refer generally to transport of waste from around Australia.

Finding

28 There is no specific mention in licence 642 as varied of where dross is to come from, so that there is no mention of dross coming from the Point Henry plant. Indeed apart from the reference to the type of waste allowed to be generated and stored and the volume of that type of waste, including dross, allowed at the premises there is nothing explicitly in the licence document suggesting waste can be brought to the site. By implication it is allowed, given the other provisions of the licence, as relied on by the Second Respondent (par 27). As it is by implication only rather than express provision, I consider the licence is not completely clear on its face and additional material referred to in the licence may well be relevant, depending on the approach to construction I adopt.

29 The Court has not been provided with any cases which have considered the appropriate interpretation of environment protection licences issued under the POEO Act and is unaware of any. This case therefore raises the fundamental issue of what is the appropriate approach to take to such statutory instruments. Is the case law applicable to development consents in Szabo and as outlined in Tipfast also applicable to the construction of licences under the POEO Act? In Szabo, Hope J stated at 433 – 434 that:

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 that it is possible otherwise to go to documents outside 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.

30 In Hubertus Schuetzenverein Liverpool Rifle Club Limited v Commonwealth (1994) 85 LGERA 37, Wilcox J stated at 46 that:

The authorities clearly establish that it is legitimate, in construing a development consent, to look at the plans that accompanied the application. However, this may be done only where the consent document expressly or inferentially incorporates the terms of the application and only where this is necessary for the purpose of interpreting the consent… It is not legitimate to look at the documents that accompanied the application, or even the application itself, to contradict (whether by way of extension or contraction) the scope of a consent stated in clear terms.

31 Development consents are rights in rem running with the land to which they relate, while environment protection licences are issued to a “person” and may be varied unilaterally by the EPA. They are not therefore the same as development consents. Under s 77 of the POEO Act a licence made under the POEO Act is indefinite in that it continues unless suspended, revoked or surrendered. A licence also gives rise to significant legal obligations and criminal offences if breached. It is important that it be certain and readily definable from a limited range of documents. I agree that a strict approach to interpretation, such as applies to development consents, ought apply to environment protection licences. This requires the terms of the licence as varied to be considered carefully.

32 At Background (b) (extracted at par 18 above) the Notice of Variation states that the application for a licence variation is to allow the acceptance and use of dross from another KAAL premises as does the application for variation of the licence. There was no dispute between the parties that the whole of the Notice of Variation of Licence 642 is relevant, including the “Background” section. That refers to the intention of the applicant for the variation to bring dross from another place (unidentified) to the Yennora premises. This still leaves outstanding the issue of whether the application for variation of the licence ought be considered.

33 The Dictionary to the POEO Act defines “licence application” as:

… an application for the issue, transfer, variation or surrender of a licence.

34 Clause A4.1 of licence 642 states:

Works and activities must be carried out in accordance with the proposal contained in the licence application, except as expressly provided by a condition of this licence.

In this condition the reference to “the licence application” includes a reference to:

(a) the applications for any licences (including former pollution control approvals) which this licence replaces under the Protection of the Environment Operations (Savings and Transitional) Regulation 1998 and
(b) the licence information form provided by the licensee to the EPA to assist the EPA in connection with the issuing of this licence.

35 The Applicant argued that in interpreting licence 642 it was necessary to consider the licence application for variation as that was expressly contemplated by cl A4.1 of licence 642. This particular clause was not altered as a result of the licence variation and the Second Respondent argued therefore that it could only be referring to the original licence application.

36 The terms of cl A4.1 clearly provide that the licence application is to be considered as part of defining the scope of activities to which the licence relates. This must include any variation of licence application which causes changes to the licence. I adopt the submissions of the Applicant at par 26 above in this regard. This approach is consistent with the cases cited in Tipfast which have considered the construction of development consents. In Liverpool Rifle Club, Wilcox J held that it was permissible to look at plans accompanying a development consent for the purpose of construing a development consent which was otherwise unclear. In Stebbins v Lismore City Council (1998) 64 LGERA 132 the Court of Appeal used a plan accompanying a development application to determine the extent of a development consent. The relevant part of the application for variation is set out at par 22 and clearly refers to the intention to bring dross from the Point Henry facility to the Yennora premises.

37 I also note that the application for variation refers to the covering letter with the application “see cover letter for further details”. Given this wording the cover letter may also be relevant to consider, particularly as set out at par 23. In these proceedings it is unnecessary that I finally determine whether I take into account the cover letter to the application for variation, although it is arguable that it may also be considered.

38 I therefore consider that the variation of licence 642 is to enable the Second Respondent to process dross from its Point Henry facility at the Yennora premises, inter alia. It is therefore necessary to consider whether s 50(2) applies to the variation of licences under s 58.

Issue 1 - Does s 50(2) of the POEO Act apply to the variation of licences under s 58 of the POEO Act?
Applicant’s submissions

39 The Applicant argued that s 50(2) of the POEO Act requires that as the scheduled activity is controlled development the Second Respondent must have obtained development consent under the EP&A Act for the scheduled activity before a variation of a licence can be issued under s 58 of the POEO Act. The Applicant submitted that on its true construction, the power of the regulatory authority to vary a licence under s 58(1) to s 58(4) of the POEO Act must be read subject to the overarching requirements of s 50(1) and s 50(2) of that Act. Any controlled development cannot be permitted by a variation of a licence unless development consent for the activity is first obtained.

40 The Applicant argued that the decision of Lloyd J in Weston Aluminium Pty Limited v Alcoa Australia Rolled Products Pty Limited [2004] NSWLEC 551 (matter no. 41622 of 2004), acted as an issue estoppel and was binding in these proceedings. As Lloyd J held that the respondent (the Second Respondent in these proceedings) did not have development consent for processing dross from its Point Henry facility at the Yennora premises a variation to licence 642 could not be granted by the EPA.

Second Respondent’s submissions

41 The Second Respondent argued that the decision of Lloyd J in Weston Aluminium Pty Limited v Alcoa Australia Rolled Products Pty Limited [2004] NSWLEC 551 (matter no. 41622 of 2004) did not act as an issue estoppel which bound the parties in these proceedings. Accordingly, as the Applicant bore the onus of proving that the Second Respondent did not have development consent for the works the subject of the Notice of Variation, and could not rely on the judgment of Lloyd J, it had not discharged its onus of proof.

42 In any event, the Second Respondent argued that s 50(2) of the POEO Act did not apply to the variation of licences under s 58 of the POEO Act. The Second Respondent submitted that the power to issue a variation of a licence under s 58 of the POEO Act was entirely separate from the power to issue a new licence under s 50(2) of the POEO Act. This construction is supported by the statutory framework which provides for the issuing or transferring of licences in s 53, s 54 and s 55 of the POEO Act and separately provides for the variation of licences in s 58 of the POEO Act. Section 58(6) of the POEO Act suggests that the legislative intention is to create a distinct and separate regime for the variation of an existing licence from the grant of that licence in the first instance.

Finding
(a) Does an issue estoppel arise in these proceedings?

43 It was necessary to read in some detail the decision of Lloyd J in Weston Aluminium Pty Limited v Alcoa Australia Rolled Products Pty Limited [2004] NSWLEC 551 (matter no. 41622 of 2004), as the Second Respondent argued that it did not deal with the issue it had raised in the proceedings, namely:

Does any applicable development consent prohibit the use of dross as a feed material for Alcoa’s operations on the Yennora site, and if it does, does it prevail over any other development consent which does not relevantly prohibit such use.

This issue is worded as if to concern the whole of the Yennora premises. The issue is specifically referred to in the judgment.

44 The Applicant framed its issue in that case as whether the Second Respondent could treat, process or reprocess any material containing aluminium pursuant to the EP&A Act in the can reclamation plant erected at Yennora North other than used beverage cans pursuant to development consent 80/40 and aluminium dross produced by Stage 1 of the remelt facility erected pursuant to development consent 81/254.

45 Lloyd J’s judgment deals with the can reclamation plant within the Yennora premises defined as “consisting of one bag house, one rotary furnace and can reclamation facility and storage area and the like”. I consider that Lloyd J did determine the issue of the use of dross from Point Henry at the Yennora premises in a definitive manner in the judgment. I am informed that the matter was extensively argued before his Honour for two days. The complexity of the factual circumstances is reflected in the judgment. Lloyd J referred to all the relevant development consents the Second Respondent sought to rely on in its arguments before me. At [40] Lloyd J considered the operation of development consent 81/254 and at [41] stated that:

This continues the previous practice of the disposal of dross from the rotary furnace that existed in Yennora South in the rotary furnace in Yennora North. Apart from that, the respondent is limited to the express terms of the development consent No. 80/40. The importation of dross from the respondent’s Point Henry facility was not part of the development application.

46 As his Honour made a finding on a question of law I consider an issue estoppel does operate in this case. It does not matter that Lloyd J has yet to make any declaration or orders based on his findings. In Blair & Ors v Curran & Ors (1939) 62 CLR 464, Dixon J stated at 531 – 532 that:

A judicial determination directly involving an issue of fact or of law disposes once [and] for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.

Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order.

47 The effect of the issue estoppel in these proceedings is that I am bound by Lloyd J’s finding that the Second Respondent does not have development consent under the EP&A Act for the processing of dross from the Point Henry facility at the Yennora premises. It is therefore necessary to consider the relationship, if any, between s 50(2) and s 58 of the POEO Act.

(b) Does s 50(2) of the POEO Act apply to the variation of licences under s 58 of the POEO Act?

48 Both parties argued their respective interpretations of the POEO Act provisions in question were supported by the objects of the POEO Act contained in s 3. The relevant objects of the POEO Act state:

The objects of this Act are as follows:
…
(b) to provide increased opportunities for public involvement and participation in environment protection,
(c) to ensure that the community has access to relevant and meaningful information about pollution,
…
(e) to rationalise, simplify and strengthen the regulatory framework for environment protection,
(f) to improve the efficiency of administration of the environment protection legislation,
…

49 Given the broad nature of these objects there is no obvious support for either parties’ arguments in the specific circumstances before me. I do not therefore find persuasive the Applicant’s argument that to allow the EPA to vary a licence to approve a scheduled activity which also needs development consent before that consent is obtained is not in accordance with the Act’s objectives and undermines the intent of s 50(2). I agree with the Second Respondent that if the EPA decides to issue a variation of a licence to allow a scheduled activity for which development consent under the EP&A Act is required, this does not remove the obligation on the applicant for the variation to obtain development consent if required under the EP&A Act.

50 The Second Respondent argued that s 50(2) was essentially a timing provision to ensure that when a new licence was issued under the POEO Act for a scheduled activity that is also controlled development that development consent was granted first. When the provisions of s 50 and s 58 are read as a whole I agree with that submission. There are two separate regimes provided for new licences and variation of licences. One does not apply to the other.

51 I consider that this approach is supported by s 58(6)(b) of the POEO Act which states that if the proposed variation has not, for any reason, been the subject of environmental assessment and public consultation under the EP&A Act the EPA is to invite and consider public submissions before it varies the licence. Section 58(6)(b) of the POEO Act clearly contemplates a situation where an application for a variation of a licence is considered by the appropriate regulatory authority before development consent for a scheduled activity that is controlled development has been granted. It follows that s 50(2) does not apply to the variation of licences under s 58 of the POEO Act.

Issue 2 – Is the existence of development consent a jurisdictional fact under s 50(2) of the POEO Act?

52 As a result of my findings in par 51 above, it is not necessary that I decide whether the existence of development consent is a finding of a jurisdictional fact under s 50(2) of the POEO Act.

53 The Applicant has been unsuccessful on the issue of whether s 50(2) applies to the variation of licences under s 58 of the POEO Act. It follows that the declaration and order sought in the Class 4 Application will not be made and the application should be dismissed.

Orders

54 The Court orders that:

1. The Class 4 Application be dismissed;

2. Costs be reserved;

3. Exhibits are to be returned.