Weston Aluminium Pty Ltd v The Minister Administering the Environmental Planning and Assessment Act and Anor.

[2002] NSWLEC 22

Land and Environment Court

of New South Wales

CITATION:

Weston Aluminium Pty Ltd v The Minister Administering the Environmental Planning and Assessment Act and Anor. [2002] NSWLEC 22

PARTIES:

APPLICANT:
Weston Aluminium Pty Ltd

RESPONDENTS:
The Minister Administering the Environmental Planning and Assessment Act and Anor.

FILE NUMBER(S):

10397 of 1995

CORAM:

Bignold J

KEY ISSUES:

Development Consent :- Modification of development consent-consent granted by Court-conditions imposed to protect environment-whether proposed amendments to conditions involve derogation of environmental protection

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 96(2)

CASES CITED:

Alumino (Aust) Pty Ltd v The Minister administering the Environmental Planning and Assessment Act 1979 (Talbot J - unreported 29 March 1996)

DATES OF HEARING:

27, 28 February, 25 and 26 June, 16 and 17 August and 25 September 2001

DATE OF JUDGMENT:

02/28/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J Robson, Barrister

SOLICITORS
Mr K Kanjian

1ST RESPONDENT
Ms M Doheny,
2ND RESPONDENT
Mr J Robertson, Barrister

SOLICITORS

1ST RESPONDENT
Pike Pike and Fenwick
2ND RESPONDENT
P J Donnellan & Co.

JUDGMENT:

IN THE LAND AND

Matter No. 10397 of 1995

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

28 February 2002

WESTON ALUMINIUM PTY LTD

Applicant

v

THE MINISTER ADMINISTERING THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT

First Respondent

TERENCE JAMES KELLY

Second Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. By its amended Notice of Motion filed in Court on 26 June 2001, the Applicant seeks the modification of a development consent granted by the Court on 30 August 1996 following the upholding of an appeal brought by Alumino Australia Pty Ltd (the Applicant’s predecessor in title) pursuant to the Environmental Planning and Assessment Act 1979, s 97 (the EP&A Act) for reasons published by Talbot J on 29 March 1996. The amended modification application is to be determined by the Court in the exercise of original jurisdiction conferred upon the Court by the Environmental Planning and Assessment Regulation 2000 (the Regulation) cl 116(2) operating in conjunction with the EP&A Act, s 96.

2. The development consent was granted for the establishment of an aluminium dross recycling plant on industrially zoned land fronting Mitchell Avenue, Kurri Kurri. The consent was granted subject to 80 conditions, most of which had been suggested in draft form by the Minister and were adopted by the Applicant’s predecessor title.

3. In his reasons for judgment, Talbot J noted that there were only six conditions in dispute between the parties and he adjudicated on the disputed conditions before directing the parties to draft and settle the conditions of consent to reflect the Court’s decision.

4. By subsequent Orders made on 30 August 1996, the Court granted development consent subject to the 80 conditions embodied in the document Exhibit 35 which had been drafted by the parties (one condition of which, namely condition 14, was redrafted by Talbot J).

5. The Applicant’s amended Notice of Motion seeking modification of the development consent seeks to amend 11 of the conditions imposed upon the grant of that development consent (one of which was included in the conditions in dispute and was resolved by Talbot J’s adjudication that the condition be imposed as sought by the Minister, and which ultimately was imposed as Conditions 23).

6. On the hearing of the modification application, the Minister’s participation has been confined to providing assistance to the Court. He has done so by adducing evidence of the results of his Department publicly notifying the modification application (both in its original form and in its amended form) and by tendering all written submissions received from individuals and public authorities to the two public notifications. Additionally, the Minister has tendered his Department’s appraisal of the modification application and has tendered statements prepared by Mr Bennett, a Senior Officer of the Environment Protection Authority (EPA) responsible for the licensing of the development pursuant to the provisions of the Protection of the Environment Operations Act 1997 (the PEO Act). Although the Minister accepted the position of neither consenting to, nor opposing the amended modification application, he did adopt the views of the EPA on a number of the conditions, the subject of the amended modification application by virtue of due deference accorded to the EPA as the regulator of the activities conducted by the Applicant in terms of the PEO Act.

7. The second Respondent’s participation in the proceedings has raised significant opposition to the granting of the amended modification application. The second Respondent who is a nearby resident to the approved development and who has consistently opposed it, became a party to the proceedings by order made by Cowdroy J on 14 December 2000 for the reasons given in his interlocutory judgment in the proceedings (2000) NSWLR 265 where his Honour concluded:

The nature of the evidence the applicant wishes to adduce and the decision of the Minister not to actively contest the proceedings satisfies the Court that the joinder of Mr Kelly is necessary to ensure that all evidence and matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon.

8. Mr Kelly had sought joinder when he learned that Mr Maybury, who had been a party in the original proceedings before Talbot J when representing his own interest and the interests of the Kurri/Weston District Concerned Citizens Action Group Inc (and who had been nominated as a party to the present proceedings) had withdrawn from the proceedings (apparently as part of a settlement arrangement between himself and the Applicant involving other litigation).

9. The opposition raised by the second Respondent against the granting of the Applicant’s amended modification application was initially strongly supported by the expert evidence of Dr W Davies, a highly qualified Chemical Engineer whose three initial written Statements were tendered in evidence (Exhibits C/2, D/2 and G/2). It was this expert evidence against the original modification application that the Applicant’s case had not originally contemplated that led to the Applicant seeking and obtaining an adjournment of the original hearing of the modification application in order to prepare a case against the evidence led by Mr Davies. This was but the first and three significant punctuations in the hearing of the application which has protracted the progress of the application in this Court.

10. However, following Dr Davies’ participation in a joint conference with the Applicant’s belatedly retained independent expert (Mr Court to answer Dr Davies’ criticisms) which was directed to be held by the Court, where he and Mr Court reached substantial agreement upon matters in dispute (which in turn led to the Applicant seeking and obtaining leave to amend its modification application to reflect the content of the significant agreements reached between the experts at the joint conference) the second Respondent’s opposition to the amended modification application took a different tack because his case could no longer claim the support of expert evidence. This was recognized forensically by Counsel for the second Respondent whose final address laid emphasis upon the evidence which had been adduced by the second Respondent and which had indicated that the Applicant had on many occasions breached relevant conditions of the development consent, leading to the ultimate submission that in view of the proven misconduct of the Applicant, the Court could not reasonably rely upon it to comply with relevant conditions of development consent (including those proposed to be amended by the amended modification application) and that on that account, the Court would not relax the existing conditions which had been imposed to protect the environment from the effects of the operation of the Applicant’s dross recycling plant, particularly in the light of the controversial local circumstances that had prevailed at the time of the grant of the development consent, which circumstances had not significantly abated during the past two or three years during the operation of the plant.
B. THE AMENDED MODIFICATION APPLICATION AND THE RESULTS OF THE PUBLIC NOTIFICATION PROCESSES

11. The amended modification application (Exhibit 13) seeks approval to amend conditions 10, 11, 13, 14, 21, 23, 29, 41, 66, 72 and 75 of the development consent and to insert a new Condition 14A to supplement the amendments to Conditions 10 to 14 inclusive)—all in the manner indicated in the changes to the text of those conditions that are highlighted (either by way of deleting words or adding words) in Exhibit 13.

12. Thus, in the following text (which reflects Exhibit 13) the current form of the conditions appears in the unhighlighted text and the proposed amendments are highlighted in the text:

10 The concentration of gaseous fluoride discharged to atmosphere via any hot or high temperature stack must not exceed 1.4mg/m3.
11 The concentration of gaseous fluoride discharged must be monitored continuously at each hot or high temperature stack using a method approved in writing by the EPA.
12 If the concentration of gaseous fluoride discharged to atmosphere exceeds 1.4mg/m3 at any hot or high temperature stack, the continuous fluoride monitoring system must activate an audible alarm inside the plant and a visible alarm inside and outside the plant.
13 If the concentration of gaseous fluoride being discharged to the atmosphere exceeds an hourly average of 1.4mg/m3 at any hot or high temperature stack, the plant or section of the plant where the exceedence occurred must cease operating.

14a. A continuous recording and alarmed bag leak detector must be installed in each stack with calibration to detect bag failure. The results shall be included in the annual report required pursuant to condition 30 (27). In the event of a bag failure the failed bag shall be repaired or replaced as soon as possible within the current operational cycle .

21. All loading/unloading and handling of dross and ash/fume waste shall, where practicable, take place wholly within the plant building. Where dross or ash/fume waste is loaded or unloaded outside the plant building, it m ust be contained in sealed bulka bags, to prevent discharge of their co ntents outside the plant building . All material is to be handled in dry w eather conditions or in a protected area where it cannot become wet .

29. The applicant shall provide the Council and EPA with access at all re asonable times and on reasonable notice to a copy of the complaints register for each calendar month period within seven days of the end of each month. The data for each month shall be accompanied by an internal audit report of the system . The applicant shall present the complaints register for inspection by the Monitoring Committee on each occasion which it meets .

41. The plant shall only use dross sourced from Australian smelters and secondary aluminium processors. Save and except for 15,000 tonnes per annum of dross sourced from overseas smelters and secondary aluminium processors, the plant shall only use dross sourced from Australian smelters and secondary aluminium ,processors. No imported dross from overseas sources shall otherwise be processed in the plant. Before processing any imported dross, the applicant must observe the requirements of the protocol annexed hereto marked "A"

66. Details (including map) of major heavy vehicle routes utilised during the past twelve months after the commencement of operation of the operation plant. Within seven days of changes occurring in existing heavy vehicle routes used by heavy vehicles servicing or operating to or from the plant, the applicant shall provide details (including map) of the changes to Council and DUAP

72. Heavy vehicles shall only enter or leave the site between the hours of 7.OOam and 8.OOpm Monday to Saturday and shall not enter or leave the site on Sundays and public holidays unless there are factors beyond the control of the applicant requiring a departure from this condition.

75. The applicant shall provide to Council evidence of satisfactory arrangements having been made with the Shortland County Council Energy Australia in relation to any existing installations and proposed electricity connections.

13. Annexure “A” referred to in Condition 41 contains the following Protocol for inspection of imported dross:

1 The applicant must spread each batch of imported dross on the floor of the plant in an approved unloading area to inspect the batch in the manner outlined in paragraph 3 of this protocol to identify possible adulteration of the batch by non-dross materials more particularly described in paragraph 5 of this protocol.

2 The inspection must be conducted by the applicant's plant manager or a person trained and certified by the plant manager as being competent to inspect batches of imported dross for non-dross materials.

3 The first ten batches of dross from each new overseas source must be spread on the floor of the plant and notionally divided into ten separate sections. Each section must then be inspected with the results of that inspection being recorded (sectional inspection). Once consistency of the non-dross free status of an overseas source is established, each subsequent batch of dross from that source must be inspected as a whole with the results of that inspection also being recorded (whole inspection). If adulteration of a batch is detected, the applicant must conduct sectional inspections of ten batches of dross next following the adulterated batch until the non-dross free stains of dross from that source is again established at which time the applicant must resume whole inspections for each batch of dross from. that source.

4 The applicant must take representative photographs of the first ten batches of dross from each new overseas source. For as long as imported dross from that source remains free of non-dross material, the applicant must take photographs of each successive 50th batch of dross imported from that source. If dross from that source is found to be adulterated by non-dross materials necessitating sectional inspections of the next ten batches, the applicant must take photographs of each of those batches.

5 The applicant must identify and record materials present or not present as adulterants in inspected batches of dross with specific reference to:


(a) paints, lacquers or latexes as discrete; materials or as coatings on scrap;

(b) oil, grease or lubricants as discrete materials or adhering to scrap:

(c) insulation on electrical wiring or electrical equipment;

(d) plastic or resinous solids, liquids or sledges;

(e) organic liquids or sledges (petroleum or solvent type odour being an indicator of the presence of such materials);

(f) inorganic solutions or sledges;

(g) any powder, granular or solid materials which are not clearly identifiable as associated with aluminium processing;

(h) electrical equipment including fluorescent lights, high intensity lamps, incandescent lamp filaments, mercury vapour lamps, metal halide tamps. UV disinfectant lamps, electrical wiring devices, switches, thermostats, toys, white-goods components, mercury-arc rectifiers. relays and tilt switches;

(i) dry-cell batteries including button-type batteries;

(j) laboratory, medical and scientific instruments including glass thermometers, barometers and manometers; and

(k) dental amalgams.


6 Materials not to be treated as adulterants are to include small quantities of cast house and foundry waste such as foundry gloves, thermocouples and the like.

7 The applicant's plant manager must establish and keep at the plant. a photographic guide for recognising adulterants of imported dross.

8 The applicant must reject for processing all batches of imported dross adulterated by one or more of the materials described to in paragraph 5 of this protocol unless they are present in trace quantities only. Batches of dross so adulterated can be processed by the applicant once the adulterants are removed. If removal is not practicable, the applicant must not process those batches of dross but must dispose of them in another approved manner.

9 The applicant must record on an inspection sheet each sectional and whole inspection undertaken. All photographs taken by the applicant of batches of imported dross must be matched with corresponding inspection sheets. The applicant must keep all inspection sheets and photographs for a period of two years for inspection by the auditor appointed under condition 31(28) of the conditions of consent and for inspection by officers of the Environment Protection Authority of New South Wales or the Department of Urban Affairs and Planning.

10 The applicant can request the Director of the Department of Urban Affairs and Planning to review the inspection protocol two years after it is first implemented. On completion of the review the Director can modify the protocol in a manner and to the extent considered necessary or desirable.

14. The amendments to the Applicant’s modification application that was filed in Court on 7 April 2000 can be summarised as follows:

(i) a new condition 14a is proposed;

(ii) Condition 21

is further amended by the inclusion of the last sentence;

(iii) Condition 41

is further amended to give effect to the inspection protocol for imported dross;

(iv) Condition 72

is further amended so as to operate only in circumstances beyond the control of the applicant

15. The reasons for the modification application (in its original form) are expounded in the affidavit of the Applicant’s Managing Director Mr Garbis Simonian dated 27 November 2000 (Exhibit 1).

16. By way of background facts, Mr Simonian states that the plant was commissioned for commercial operation in June 1998, and states that to the best of his knowledge and belief, the Applicant had “largely complied with the conditions of consent” which he acknowledged as having been imposed “to regulate the manner in which the plant was operated once constructed to ensure no adverse environmental or health consequences were caused in the immediate locality”. He cites the favourable conclusion contained in an independent environmental audit report dated 12 October 1999 prepared by HCA Envirosciences Pty Ltd.

17. Mr Simonian then refers to the fact that the operation of the plant is also regulated by a licence issued under the PEO Act in that the obligations for testing of air emissions from the plant imposed by the Licence granted to the Applicant exceeds the scope of the obligations imposed in that respect, by the conditions of the development consent.

18. Mr Simonian’s affidavit provides the following specific reasons in support of the modification application to amend the relevant conditions of the development consent:

(i) Conditions 10, 11, 13 and 14 (fluoride emissions)

These conditions deal with discharge to the atmosphere of gaseous fluoride from any stack servicing the plant. The plant has four stacks. There is one stack which is 20 metres in height which services the high temperature section. There are three stacks which are each 15.5 metres in height which service the low temperature section. Conditions 10, 11, 13 and 14, as they are presently worded, apply to all four stacks even though gaseous fluoride is only formed and emitted when the temperature of molten dross exceeds 700°C. Monitoring of the cold stacks over the past 28 months has not detected the emission of gaseous fluoride in any significant quantity or volume. I believe that it is unproductive and a waste of resources to continue monitoring the cold stacks for the emission of this gas. When conditions 10, 11, 13 and 14 were initially proposed, the Applicant did not object to their application to the three cold stacks as the Applicant did not then appreciate that gaseous fluoride would not and could not be emitted from those stacks in any significant quantity or volume.

This condition is sought to be modified to reflect the fact that sometimes it is simply not practicable to load and unload dross and ash/fume waste wholly within the building. On occasions, dross is delivered to the plant in sealed bags and can be unloaded from delivery trucks outside the plant in the covered open area adjacent to the plant without risk of dross escaping into the atmosphere. The sealed bags can then be taken into the plant and, once inside, their contents can be emptied for processing. Similarly, on occasions, ash waste which is a by-product of the recycling process is placed into bags while inside the plant. Those bags are then sealed and can be taken outside the plant for loading into vehicles. It is unnecessary for the loading of these bags to take place inside the plant as well.

I believe that the intention of this condition can still be satisfied if it is relaxed to require the Applicant to make the complaints register available to the Council and EPA rather than providing them with a copy of the register for each month at the end of the month. To date 41 complaints have been recorded in the register. Of these complaints 22 are recorded as having been made by Mr Kelly. Complaints by Mr Kelly were investigated and were found to be of no substance. The only complaints of substance were made in January, February and March 2000 by Mrs McGee and another in relation to excess noise emitted from the plant. These complaints numbered 11 in total and the problem of excess noise was addressed and rectified. The Applicant is also prepared to table the complaints register at meetings of the monitoring committee whenever it meets.

This condition, as it is presently worded, prohibits the Applicant from importing into Australia dross sourced from primary smelters or secondary aluminium processors overseas.

The plant has capacity to recycle or process 40,000 tonnes of dross per annum. It uses saltless rotary furnace technology imported from Japan to melt the dross and then to extract from its molten state the aluminium content of the dross. Apart from aluminium itself, the principal by-products of the process are:

In light of condition 41, before the plant commenced commercial operation, I sought on behalf of the Applicant to identify and secure Australian sources of dross for recycling and processing by approaching primary smelters and secondary aluminium processors throughout Australia. I have continued those efforts since the date on which the plant commenced commercial operation. Some of the sources of dross in Australia which I was able to identify sold and continue to sell their dross through a system of public and competitive tendering. Where this was the chosen method of sale and distribution, the Applicant submitted and continues to submit tenders. I am aware that total production of dross in Australia by primary smelters and secondary aluminium processors is presently between 38,000 and 40,000 tonnes per annum.

By September 1998, the Applicant was processing 3,500 tonnes of dross on an averaged annualised basis. By December 1998, this averaged annualised tonnage had increased to 5,000 tonnes. By June 1999, it had increased still further to 7.500 tonnes on average per annum. As at the end of November 1999, the Applicant had managed to increase processing to 14,000 tonnes per annum again on an averaged annualised basis. This rate of production continues to date.

A total of 95% of dross presently supplied to the Applicant derives from primary smelters and secondary aluminium processors in New South Wales. The remaining 5% derives from South Australian sources.

Through a process of competitive tendering, I believe that the Applicant can win another 6,000 tonnes of dross per annum from Australian sources bringing its share of the market in Australia to 20,000 tonnes of dross per annum. However, I have now been able to identify about 18,000 tonnes of dross produced annually in Australia to which the Applicant cannot obtain access because of pre-existing arrangements or understandings tying the producers of this dross to other processors in the dross processing and recycling market in Australia.

KAAL Australia Pty Ltd operates a secondary processing plant at Point Henry in Victoria and produces 10,000 tonnes of dross per annum. Comalco Aluminium Ltd operates a primary smelter on Boyne Island in Queensland and produces 8.000 tonnes of dross and scrap per annum. Dross produced by these outlets is supplied to Simsmetal Ltd and Metalcorp Ltd, which, between them, share and control the remainder of the market for dross processing and recycling in Australia. Simsmetal Ltd owns and operates two dross recycling plants - one in St Marys in New South Wales and the other in Geelong in Victoria. Metalcorp Ltd similarly owns and operates two dross recycling plants - one in Bell Bay in Tasmania and the other on Boyne Island in Queensland.

The continuing dominance of Simsmetal Ltd and Metalcorp Ltd in the Australian dross processing and recycling market and the unavailability of approximately 18,000 tonnes of Australian dross on an annual basis to the Applicant means that from Australian sources, the Applicant's plant can only achieve effectively one-half of its designed capacity. This was not an outcome which was expected when the feasibility of the plant was considered.

I am now aware that both Simsmetal Ltd and Metalcorp Ltd already import foreign dross into Australia for processing at their respective plants. I am advised by Geoffrey Thompson of The Environment Protection Group Australia that since 1996, Simsmetal Ltd has had issued to it three permits to import dross from New Zealand. Geoffrey Thompson further advised me that importation of foreign dross from a non-OECD country does not presently require a permit from The Environment Protection Group Australia.

On behalf of the Applicant, I have made enquiries about sourcing dross from overseas primary smelters and secondary aluminium producers for processing in the Applicant’s plant.

On 29 July 1999, I caused to be lodged on behalf of the Applicant an application with the Minister for the Commonwealth Department of Environment and Heritage under the Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulations 1996 for permission to import 100 tonnes of dross from Japan for processing in the Applicant’s plant. The Applicant chose a minimum threshold quantity of dross to gauge the Minister’s response and to obtain a better understanding of the processes and considerations underpinning the Minister’s determination.

On 27 October 1999, the Minister’s delegate, the First Assistant Secretary, The Environment Protection Group Australia, declined to grant the permit. Annexed to this affidavit and marked C is a copy of a statement from the First Assistant Secretary containing reasons for the decision not to grant the permit. In summary, while the Minister was satisfied that there were no environmental or social hazards militating against the importation of dross into Australia, the Minister was not prepared to issue the permit which the Applicant sought in the face of condition 41 of the conditions of consent.

The Applicant now seeks to vary this condition so that it is permitted to import into Australia up to 15,000 tonnes of dross per annum for processing at its plant.

The Applicant presently employs 21 people in its plant - 16 are full-time employees while the remaining 5 are contractors. Permission to import a further 15,000 tonnes of dross per annum will translate into a need for a further 15 full-time employees and 5 contractors,

On 18 November 1999, I instructed the Applicant's solicitors, Parry Carroll Kanjian, to write to the EPA to seek advice on whether it was prepared to support an application to amend condition 41 of the conditions of consent to permit the importation of foreign dross. Annexed to this affidavit and marked D is a copy of this letter. Annexed to the affidavit and marked E is a copy of the letter in reply from the EPA dated 13 December 1999. So far as I am aware, the EPA still maintains the position expressed in the annexed letter .

Having complied with this condition to date, the Applicant seeks its modification so that the Applicant is only required to report to the Council and the EPA within seven days of changes to heavy vehicle routes taking place.

The Applicant seeks this modification because in some unusual and exceptional circumstances, heavy vehicles are unable to enter or leave the site during the times presently permitted. For example, there have been instances where by reason of an accident on the F3 freeway, extensive traffic delays have occurred preventing trucks from reaching the plant before 8.00 pm. Traffic congestion on the F3 freeway is also frequently encountered.

This modification merely brings the condition up to date by referring to the current correct name of the electricity authority.

The Applicant seeks modification of this condition by being relieved of the obligation to provide the Council at 12 monthly intervals with a record of receipts of removal of solid waste other than ash and fume from the site. Instead, the Applicant proposes to make this record available to the Council for inspection as and when the Council requires access to it

19. Upon receipt of a copy of the modification application lodged with the Minister as the relevant consent authority (pursuant to the provisions of State Environmental Planning Policy No 34—Major Employment—Generating Industrial Development), the Minister’s Department publicly notified the proposal in accordance with cl 72A of the 1994 Regulation under the EP&A Act and received submissions from a number of public authorities (including the Cessnock City Council) and 129 public submissions (all but one of which, namely that of the Kurri Kurri Chamber of Commerce and Industry objected to the proposed modifications).

20. The Minister’s Department prepared a detailed written report for the Minister (which has been tendered in these proceedings as part of Exhibit A/1) on the modification application which report includes the following comments in respect of each of the conditions proposed to be amended—

(i) Conditions 10, 11, 13 and 14 - fluoride emissions

The Department relies on the technical expertise of the EPA on these matters and notes that the EPA considers that fluoride emissions from the low temperature stacks is unlikely to be an environmental problem, and that periodic monitoring would be acceptable.

The Department considers that any relaxation of the requirement to handle the materials indoors should only apply to the handling of sealed bags, subject to adequate safeguards being put in place to prevent the material being released into the atmosphere or waterways.

The Department notes that the EPA, in its comments on the importation of overseas sourced dross, considered that the chemical composition of the dross, rather than the country of origin, was the major determinant of the environmental impacts of dross processing. The EPA has indicated that the chemical composition of the dross will still be required to be monitored and reported in accordance with the EPA Licence.

The Department does not consider that this condition should be modified except with the agreement of both the Council and the EPA.

The Department does not have any technical expertise in this area, however notes that the EPA has indicated that it would not object to the lifting of the prohibition on the importation of overseas sourced dross. The Department also notes the EPA’s comment regarding the importance of the composition of the dross in terms of the potential environmental impacts of processing. The Department therefore considers that should the Court decide to modify the consent by lifting the prohibition on imported dross, appropriate monitoring and reporting mechanisms on the chemical composition of the dross should be retained.

The Department does not consider that this condition should be modified except with the agreement of the Council. The Department notes that the Council wishes to retain this condition in order to permit a review of the transport routes used, and the impact if any on traffic flows.

In the absence of an assessment of the noise impact of traffic movements outside of the permitted hours, as requested by the EPA the Department does not consider that there is justification for modifying this condition.

The Department raises no objection to the proposed modification.

21. In its responses to the Department, the EPA advised that it raised no objection to the proposed amendments to Conditions 10, 11, 13, 14, 23, 29 and 41 but that the amendment to Condition 21 would only be acceptable if the outdoor activities were limited to dry weather conditions or in circumstances where the materials could not become wet. It advised that it had no interest in the other proposed amendments to other conditions.

22. The Cessnock City Council, in its responses to the Department, opposed all of the proposed amendments except the amendment to Condition 75.

23. After providing individual comment in respect of each of the proposed amended conditions, the Council’s letter stated:

It is considered that amendment of the conditions as detailed in the exhibition documents will erode the environmental safeguards placed on the consent to protect surrounding residents.

24. Following the Applicant obtaining the Court’s leave to amend its modification application, the amended modification application was publicly notified in August 2001. It resulted in a further public submissions being received by the Department—all but one (again that from the Kurri Kurri Chamber of Commerce and Industry) opposed the granting of the amended modification application.

25. The Greater Cessnock City Council’s response included the following statement:

It is considered that amendment of the conditions as detailed in the exhibition documents may erode the environmental safeguards placed on the consent to protect surrounding residents. Council requests that assessment of the amendment specifically addresses these concerns over the possible impact upon the surrounding community.

26. Before considering the evidence adduced in the present case, I propose to consider the reasons for judgment of Talbot J delivered on 29 March 1996 for the light they cast upon the circumstances of the grant of the development consent and the imposition of the conditions on that consent. In my judgment, these are relevant matters to consider in determining the amended modification Application.

C. THE COURT’S 1996 DECISION TO GRANT THE DEVELOPMENT CONSENT AND TO IMPOSE THE CONDITIONS OF CONSENT

27. The case before Talbot J involved some 20 days of hearing. The Minister’s position as first Respondent in those proceedings was that he was “not satisfied with the present proposal given the concern about health effects and strong community opposition” (p 2). The position of the second Respondents in those proceedings, Mr and Mrs Maybury and the Kurri/Weston District Concerned Citizens Action Group Inc was to oppose the development based upon the “significant body of opinion within the wide community in and around Kurri Kurri which is generally apprehensive about the potential impacts of the development on the residents of the area as a consequence of emissions to air from the plant” (p3).

28. The Cessnock City Council did not directly participate in the proceedings but the Court noted (at p 4) its opposition to the development on account of (i) possible adverse impact in the health of surrounding residents; and (ii) significant public objection to the proposal.

29. At p 6 of his reasons, Talbot J noted that the “post significant issue, and certainly the one that took up the majority of the time was whether the emissions from the plant could be controlled to a satisfactory level of safety”.

30. After a detailed discussion of the evidence and the findings on this and other issues raised at the hearing (which findings included an acceptance of a maximum emission rate of 1.4 mg/m³ for gaseous fluoride as satisfying the relevant ANZECC Guidelines and as not having any adverse effects on humans suffering respiratory problems), Talbot J expressed the following conclusions at p 15 and 16:

It is obvious that where development involves the handling and processing of materials which have the potential to cause significant harm to the health of human beings and vegetation, extreme caution must be used in determining whether development consent will be forthcoming. In the present case the Court has sat and listened to the testing of technical opinions and advice tendered by expert witnesses in the relevant fields. In some respects the testing by cross examination was allowed to extend beyond the limit which a bona fide expert might be expected to endure. The result has been, however, that the Court has the advantage of knowing that none of the applicant's expert witnesses were persuaded to deviate from their conviction that the plant could be operated in a way which would not have any significant environmental consequence. As Mr Craig said, this is not a case in which there really is a competing expert view demonstrating different scientific opinions which remain unresolved. Rather it has been demonstrated that the dross recycling process can be managed and controlled in such a way that the predictions will be met. The conditions proposed will establish a robust and rigorous program of assessments and reports to enable an ongoing assessment. Local residents and Cessnock City Council will be an integral part of that process. The Court does not propose to leave it up to the EPA to licence the plant to limit emissions to the maximum level adopted by Dr Zib. The applicant and the Minister will be directed to draft a further condition whereby the applicant is required to install a particular control device which will be activated in the event that the maximum level of emission of fluoride is exceeded in the way that Mr Halverson assumed it could be done.

31. In relation to the conditions of consent, only one of the conditions which are the subject of the amended modification application, namely Condition 23, was the subject of dispute, all other conditions that are the subject of the modification application having been imposed by agreement between the parties (along with all but six of the 80 conditions that were ultimately imposed). The reasons for imposing the conditions agreed upon by the parties as stated in the Court’s Order were the following:

(a) to ensure that individual and cumulative airborne emissions from the proposal and surrounding industries are within prescribed acceptable limits;

(b) to ensure that potential hazards do not pose an unacceptable off-site risk;

(c) to manage noise generated by the operation of the plant so as to prevent the undue disturbance of residents in the vicinity;

(d) to ensure best management practices and best technology is adopted in the operation of the plant;

(e) to provide for the monitoring of the environmental performance of the plant and allow public participation in the monitoring process; and

(f) to ensure that satisfactory arrangements have been made for the off-site disposal of fume and ash waste prior to the operation of the consent.

32. It is clear that these reasons are stated globally and may have to be understood distributively vis a vis particular conditions of the consent. However, the rationale for imposing the conditions is clear.

33. Reverting to his Honour’s judgment, it contains the following passage (at 18) in respect of the imposition of Condition 23 (referred to therein as Condition 20):

This condition demands that the applicant furnish details on the quantity, source and chemical composition of dross to the EPA, the Department of Planning and the council each quarter as well as the Monitoring Committee upon request. There is no concern in regard to the furnishing of details of the chemical composition of the dross. However the company is concerned that the quantity and source of material is commercially sensitive and should be confined to the EPA. Notwithstanding evidence from the project manager, Mr Phillip Raymond, the Court has not been convinced that the quantity and source of the dross material is commercially sensitive. The condition does not require that the price or other costs associated with the supply of dross be furnished. If there is a problem with the operation of the plant in so far as air emissions are concerned, the Court appreciates that it may be relevant to have regard to the quantity, source and chemical composition of the dross used from time to time because the fluoride component in the dross may vary according to the technology used in the primary smelter. Given that the price paid for the material is not to be the subject of the requirements of condition 20, that information can remain privy to the applicant. Condition 20 should be imposed in the form proposed by the Minister.

34. Having regard to the foregoing discussion, I am satisfied that the conditions of development consent were imposed to effectively regulate and control the environmental impacts of the approved development and to establish the machinery and means for ongoing monitoring and assessing those impacts to ensure compliance with the relevant controls.

35. The relevance for present purposes of the circumstances of the grant of the development consent and the imposition of the conditions, is to obtain a proper understanding and appreciation of the reasons for the imposition of the conditions in order to better understand and appreciate the impact on that structured regime of the proposed modifications. The circumstances pertaining to the grant of development consent and the imposition of conditions provide the background or context for the determination of any modification application. Additionally, those circumstances define the approved development and therefore provide the benchmark in respect of which the modification application must satisfy the statutory test of the development, the subject of the modified consent “being substantially the same” as the development as originally consented to: see s 96 (1A)(b) and 96(2)(a). But the relevance of the circumstances of the grant of the development consent may in a given case transcend the functions I have identified. For example, a development consent may have been granted upon the basis of conditions being imposed, without which, the grant of consent would not have been contemplated. In such a case, a modification application to eliminate those conditions, may well satisfy the statutory test of resulting in “substantially the same development”, yet the circumstances of the original grant of the development consent may have decisive weight on the exercise of the statutory discretion not to modify a development consent.

36. Although the question was for a long time during the protracted hearing left begging, ultimately the second Respondent has not submitted that any of the conditions, the subject of the amended modification application, were of such fundamental import that it was inconceivable that the development consent would have been granted without them or that the development consent was wholly dependent upon the continuance of such conditions in their original formulation.

37. However, the question for a long time during the course of the hearing was left unanswered in respect of Condition 41 which limited the plant to recycling dross that was sourced from Australian smelters and secondary aluminium processors, with a total prohibition on the handling of imported overseas dross.

38. Condition 41, it is to be recalled is a condition that was imposed by agreement between the parties. Accordingly, it is not otherwise noted in Talbot J’s reasons for judgment.

39. Its existence is cross-referenced in Condition 23 which is discussed in the earlier recited passage from his Honour’s judgment, but not in a manner that casts light on the reasons for the imposition, by agreement, of Condition 41.

40. However, there was evidence before Talbot J, namely the statement of evidence of Phillip Raymond, a Project Manager for the proposed plant (which was tendered in the present proceedings as Exhibit M/2) which addressed the changes to the Minister’s proposed conditions that the Applicant’s predecessor in title was seeking. In that statement, in respect of Condition 20 (which ultimately was imposed as Condition 23) there is a statement that there was no objection to the prohibition on the processing by the plant of imported (overseas) dross. This statement was made before the hearing before Talbot J commenced and there was no issue before the Court in those proceedings that the plant would be processing overseas dross. This position was recognised by the Environmental Impact Statement prepared in July 1994 by Envirosciences Pty Ltd which supported the original development application when it stated in Section 3.2:

The smelters sell their dross on a contract basis, usually putting it out to tender on an annual basis. It is anticipated that the dross from other Australian smelters will not vary significantly from the dross from the Alcan or Tomago smelters since all Australian primary smelters use the same technology.

Dross is currently not an internationally traded commodity by direction of the United Nations (UN). The UN is concerned that hazardous wastes may be dumped in poorer countries. Aluminium smelter dross is presently classified by the UN as hazardous waste. Only Australian sourced dross can be treated in the proposed Kurri Kurri plant.

41. I interpose that since the EIS was prepared, the UN ban has been lifted and Australia is a signatory to the Basel Convention Article 4.2(d) of which obliges parties “to reduce transboundary movement of hazardous wastes to the minimum consistent with their environmentally sound and efficient disposal” and Australia has enacted the Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulation 1996 whereunder the responsible Australian Minister may grant a permit for the importation of waste from OECD Countries. It was pursuant to that Regulation that the Applicant applied to import 100 tonnes of aluminium dross from Japan in the circumstances outlined in Mr Simonian’s affidavit, earlier quoted, in the passages providing reasons in support of the present amendment to Condition 41.

D. THE RELEVANT EVIDENCE

42. As I have earlier mentioned, the evidence adduced at the hearing can be summarised as follows:—
(i) the documentary evidence of the results of the public notifications of the original and amended modification applications;
(ii) lay evidence of a number of residents living in the vicinity of the development site and lay evidence of Mr Peters, a transport driver who has over the past two years regularly transported materials to and from the development site; and
(iii) expert evidence;

43. I have earlier summarised the results of the public notification processes which yielded a large amount of local resident opposition to the modification application which was supported by the views of the Greater Cessnock City Council. The submissions from the relevant public authorities (other than for the local Council) including, in particular, the EPA generally were unopposed to the proposed modification of the conditions of development consent. The Minister’s Department’s responses have been earlier noted—generally they were not opposed to the proposed modifications (while expressly conceding their reliance upon the expert views of the EPA as the regulatory authority under the PEO Act).
(i.) The Expert Evidence

44. Before considering the lay evidence, I should first refer to the expert evidence because of its obvious importance in the present case, which, like the original proceedings, heard and determined by Talbot J, raise matters of specialised scientific import and content.

45. Earlier, I have noted the dramatic impact upon the course of the hearing of the agreement reached in conference between the experts, Dr Davies and Mr Court. Exhibit 12 is the Joint Report of Dr Davies and Mr Court. It records the following:
1. The modifications to conditions 10, 11, 13 and 14 of the conditions of consent were agreed to subject to the Applicant installing a continuous recording and alarmed bag-leak detector in each stack with appropriate calibration to detect bag failure with reporting. Dr Davies considered that an opacity monitor or some other satisfactory alternative may be needed to monitor emissions. Mr Court considered that the continuously monitored bag-leak detectors he had proposed would adequately monitor any emissions any opacity monitor would detect.
2. The modification to condition 21 of the conditions of consent as agreed to subject to material being handled in dry weather conditions or in a protected area where it cannot become wet. Dr Davies considered that video monitoring would help to regulate all external handling as a re-assurance to residents. Mr Court considered that is was not necessary in view of the plant's condition and was not likely to be effective.
3. The modification to condition 23 of the conditions of consent was not agreed to in full. There was agreement that requiring composition of batches received was not practical, but Dr Davies considered that a document should accompany each batch designating it as dross and recording any significant features. Dr Davies considered that reducing frequency of reporting appeared to be a weakening of the regulatory conditions under which the plant operates and saw a need for more stringent performance monitoring. Mr Court considered that the modification removed paperwork and did not reduce surveillance.
4. The modification to condition 41 of the conditions of consent was agreed to on condition that the Applicant is prepared to subject imported dross to a process of physical and visual inspection requiring inputs of organic material and scrap metal which could potentially contain mercury to be identified and removed before processing. The inspection protocol proposed to the Court is suggested as a template for a protocol which is to be approved by the EPA and DUAP. The heavy metal and dioxin/furan testing proposed by the EPA for emissions when processing imported dross as per Mr Bennett's statement of 13/6/2001 should also be accompanied by similar testing of fly ash.

46. I should also note that Mr Bennett from the EPA participated in the conferences between Dr Davies and Mr Court.

47. As earlier mentioned, it was upon the basis of the agreement between the experts that the Applicant obtained leave without objection from the Respondents to amend its modification application so that it reflected the agreements contained in Exhibit 12.

48. It is to be noted that notwithstanding their substantial agreement, there remained some minor differences between Dr Davies and Mr Court which are noted in the Joint Report. In respect of those minor differences, I prefer Mr Court’s opinions. However, I would emphasise the significance of my adoption of the rider contained in the Joint Report (Exhibit 12) concerning the need for testing of emissions from processing overseas imported dross. That rider adopts the suggestion for additional testing that is contained in Mr Bennett’s statement of evidence dated 11 May 2001 (Exhibit B/1) (It is incorrectly referenced in the Joint Report). That suggestion was Mr Bennett’s response to concerns raised in Dr Davies’ reports prior to the coming into existence of the Joint Report of Dr Davies and Mr Court. Mr Bennett’s suggestion and the reasons for it, are expressed in the following passages from his Statement (Exhibit B/1):

26. With respect to the proposed modifications to Condition 41, Dr Davies concludes that the chemical composition of dross is variable.

27. In response to the variable composition of dross, Dr Davies recommends either a continued ban on the processing of imported dross or improved assessment of its chemical composition by Weston Aluminium.

28. The EPA prefers to adopt an outcomes-based approach to the environmental regulation of such industries. Under this approach, limits and monitoring are imposed on the concentrations of pollutants that may be emitted, rather than limiting and monitoring the quality of the feedstock.

29. Consistent with this approach, Condition M2.1 of EPL 6423 requires continuous monitoring of fluoride from the so-called hot stack.

30. Dr Davies has identified that there may be other contaminants present within dross.

31. To address this issue, if the proposed modification to Condition 41 of the Development Consent is granted, I intend to attach a condition to EPL 6423 requiring other potential contaminants to be comprehensively monitored.

32. I propose a licence condition as follows:


Within ninety (90) days of the plant commencing processing of imported (foreign) dross, the applicant must conduct stack emission testing on the hot stack with the plant operating at maximum rated capacity whilst processing imported (foreign) dross. Stack emission testing must be carried out for the following air impurities:

· particulate matter

· fluoride (gaseous and particulate)

· Oxides of Nitrogen (NOx)

· Oxides of Sulfur (SOx)

· Carbon monoxide

· Polyaromatic hydrocarbons (PAH's)

· Dioxi ns and Furans

· Type 1 and Type 2 substances (lead, arsenic, antimony, mercury, vanadium, chromium, nickel, copper, manganese, tin and cobalt) as described by the Clean Air (Plant and Equipment) Regulation 1997.

A report must be submitted to the EPA within 28 days of completion of the monitoring which details the results of emission monitoring and must include details of the composition of the foreign dross being processed at the time that the emissions test(s) were being conducted."

49. The Joint Report not only adopts Mr Bennett’s suggestions. It recommends that there be similar testing of fly ash.

50. In my judgment, this additional testing as recommended by Mr Bennett and as adopted by the Joint Report of Mr Davies and Mr Court in an extended fashion, provides adequate safeguards in respect of the processing of overseas imported dross and fills the gap in the overall protocol that Dr Davies sought to remedy by his suggested change to Condition 23. The difficulty in assaying the chemical composition of dross is recognised in the Joint Report and Mr Bennett’s suggestion for additional testing of the emissions from processing imported overseas dross is considered to effectively overcome this deficiency in the regulatory procedures and practices, albeit in the fashion of adopting “an outcomes based approach to the regulation of the industry”, to adopt Mr Bennett’s words. In this respect, it is to be noted that Condition 23 was from its inception an adjunct to the “outcomes based approach” that is found in the imposition of Conditions 10, 11, 13, and 14 in their original form.

51. As I have earlier noted, the substantial agreement reached between the experts essentially left the second Respondent’s case without the support of the expert evidence originally provided by Dr Davies, and significantly led to a change of tack by the second Respondent in the course of the hearing. Nonetheless, Counsel for the second Respondent submitted that the Court would not embrace the agreement of the experts, particularly in view of what was said to be a complicated inspection protocol for imported dross proposed in the Joint Report. I reject this submission because I am satisfied that the experts’ agreement provides a workable and satisfactory approach to the ongoing assessments and monitoring of environmental impacts of the proposed development, conformably to the spirit and letter of the environmental standards and regulations imposed by the original conditions of development consent.

52. It is also to be noted that the environmental controls (including the ongoing requirements for assessments, testings and monitoring of environmental impacts) imposed by virtue of the conditions of development consent, are currently reinforced by complementary and counterpart or similar requirements contained in the Environment Protection Licence No 6423 granted by the EPA in respect of the development under the PEO Act. That Licence and the provisions of the PEO Act did not exist when the development consent was granted in 1996, although it no doubt was contemplated that necessary pollution control approvals and licences would be required under the then operative pollution control laws (since repealed and replaced by the PEO Act).

53. In my judgment, the expert evidence ultimately adduced in the proceedings (and as I have demonstrated that evidence significantly changed in the course of the hearing, most particularly as reflected in the Joint Report (Exhibit 12) of Dr Davies and Mr Court) satisfies me that there is no scientific reason for refusing the proposed modifications. Indeed, to the contrary, the scientific evidence supports the grant of the amended modification application. This conclusion is the same as that reached by Talbot J when granting the development consent in 1996 where his Honour was satisfied on the scientific evidence that no environmental harm would be caused by the development operating in accordance with the environmental standards fixed by the conditions he imposed on the development consent.

54. However, in so concluding, I would require appropriate amendments to be made to Condition 41 to reflect the need for additional testings of emissions from processing imported overseas dross as recommended in the Joint Report (Exhibit 12) which adopts and extends the suggestions of Mr Bennett in his report (Exhibit B/1) that I have earlier noted.
(ii.) The Lay Evidence

55. The lay evidence establishes not only the continuing opposition to the existing development and the proposed modifications by those few residents (including the second Respondent and his wife) who gave evidence, but more importantly establishes that the Applicant has consistently breached Condition 21, which requires “all loading/unloading and handling of dross and ash/fume waste to take place wholly within the plant building”.

56. Ultimately Mr Simonian admitted these breaches but sought to explain, if not justify, the practice of loading and unloading that occurred outside of the building because the Applicant had been informed by Workcover in 1998 that based upon the laboratory test results in April 1998 of ash samples received from the Applicant’s premises, “the samples tested are not classified as dangerous goods under the Australian Code for the Transport of Dangerous Goods by Road and Rail (ADG Code) sixth Edition”

57. Mr Simonian’s full explanation for admitting “that since November last year (ie 2000) the Applicant has permitted dust and ash waste contained in sealed bulka bags to be loaded onto trucks by forklift in the covered area adjacent to the main building” is contained in the following extract from his Statement dated 16 August 2001 (Exhibit 14):

This practice was adopted for the following reasons:

(a) when the Court granted development consent in 1996, dust and ash waste were thought to be dangerous goods - hence condition 21 requiring their handling wholly in the plant building;

(b) on 6 November 2000, PWN Australia Pty Ltd, the operator of the landfill site, wrote to the Applicant advising that it was satisfied that dust and ash waste produced by the plant was solid waste so that it would no longer be classified as dangerous goods. Annexed to this statement and marked A is a copy of this letter annexed to which are copies of supporting test results.

(c) the advice contained in annexure A followed a determination made by the Workcover Authority in 1998 that dust and ash samples from the plant were not to be classified as dangerous goods under the Australian Code for the Transport of Dangerous Goods by Road and Rail. Annexed to this statement and marked B is a copy of that letter together with supporting test results.

(d) before November 2000, the Applicant had loaded sealed bulka bags containing dust and ash wholly within the plant building. The forklifts would deposit the bags into truck tippers by dropping their load from a height over the side of the tipper wall - the trucks and the forklifts being on the same horizontal level.

(e) this method of loading caused some of the bags to rupture. This in turn caused difficulty when the bags reached their destination at the landfill site.

(f) the operator of the landfill site requested that measures be put in place by the Applicant to prevent this occurrence. The Applicant could only address the problem by using mobile ramps placed beside the truck tippers so that forklifts could use the vantage of the ramps to place, as opposed to drop, sealed bulka bags into position in the tippers. This procedure eliminated or reduced the incidence of ruptures.

(g) however, the mobile ramps could not be accommodated within the plant building. They could only be accommodated on the large concrete apron adjacent to the building under cover of the canopy.

(h) since November 2000, in light of the reclassification of the waste as solid waste and not dangerous goods and in light of the need to use mobile ramps, the Applicant has adopted the practice of loading waste contained in sealed bulka bags outside the plant but under cover of the canopy where it cannot become wet.

5 Since this practice was adopted, there have only been two or three incidents involving the rupture of bags and spillage of their contents. In each case, the Applicant's emergency response procedure was triggered causing split waste to be collected by hand in the first instance with residues being swept up by a mechanical sweeper. In addition, since the practice was adopted, the Applicant ensures careful checking of bulka bags to ensure that they are properly sealed before they are taken out of the plant building. The filling of bulka bags with waste and their sealing still takes place within the plant building.

58. Mr Simonian’s evidence well explains how it came about that the Applicant deliberately adopted the practice of loading and unloading bulka bags of dust and ash waste outside of the building. It does not, however, justify or excuse the breach of Condition 21. It was not submitted on behalf of the Applicant, (nor could it reasonably have been submitted) that Condition 21 was predicated upon the material being regarded as dangerous goods.

59. Moreover, the evidence led by the second Respondent satisfies me that the practice of loading and unloading those materials outdoors was established well before November 2000 and that whether or not the goods be regarded as dangerous goods, the incident that occurred during the breakdown on Pennant Hills Road of a double rig semi-trailer with a load of dust and ash waste being transported from the Applicant’s plant to the landfill site operated by Pacific Waste Management demonstrates an inherent risk with the material. On that occasion (ie 6 February 2001) rainwater entered the load by virtue of the poor condition of the tarpaulins covering the load causing a chemical reaction and the release of toxic fumes which overcame the driver, Mr Peters as he sat in the cabin of the truck. This incident simply demonstrated the known hazard of water mixing with the dust and ash materials causing a toxic chemical reaction. Accordingly, the question of the classification of the material of “dangerous goods ” is really not to the point. Not only did Mr Peters’ evidence of what occurred at the plant involving that particular load of ash material establish a breach of Condition 21, but the occurrence en route to the landfill site demonstrated a breach of Condition 39 which provides “dross shall only be transported to and from the premises in trucks having the full load covered by waterproof cover which prevents the ingress of water to the load”.

60. Mr Simonian has stated that since the incident on Pennant Hills Road, the Applicant has adopted a policy requiring all vehicles leaving the plant to be inspected to ensure that tarpaulin covers are not torn.

61. The evidence adduced by the second Respondent also satisfies me that at times, the Applicant has probably breached Condition 43 which provides as follows.

In order to reduce fugitive dust emissions from the plant, the roller shutters shall be closed when trucks are dumping and bag fitters shall be emptied directly into sealed containers of bulk bags.

62. I am here referring to Dr Davies’ observations when inspecting the plant on 15 May 2001 of what occurred with a semi-trailer unloading dross inside the plant building and to his subsequent conversation with Mr Simonian. The difficulty the semi-trailer obviously experienced in manoeuvring and unloading while the shutter doors were closed compared with the apparent facility of maneuvering if the shutter doors were open strongly suggest that the temptation to open the shutter door in such circumstances is virtually irresistible.

63. Other allegations of breaches of conditions by the Applicant were made by the second Respondent. However, at the end of the day, I think that the most serious breach that has been established is the regular breaching of condition 21 which has occurred in the circumstances for the reasons given by Mr Simonian that I have earlier mentioned.

64. The second Respondent alleges a further particular breach of the development consent inasmuch as he says that the Applicant has been obtaining scrap metal from Dulmison Australia, an electrical transmission company. Here, the second Respondent relies upon the statement in the EIS as to the nature of the proposed development and in particular, the statement that it is dross from aluminium smelters that is to be processed. He also relies upon Condition 41. Mr Simonian’s Statement (Exhibit 14) admits to the purchase from Dulmison of dross and aluminium scrap but asserts that Dulmison is “a secondary aluminium processor because in the course of its business it melts aluminium and cast aluminium parts”. Mr Simonian admits that dross and “clean or mill finished aluminium scrap” is processed at the plant but asserts that “unclean aluminium scrap containing organic materials like paint or laquers is not processed but is onsold to other companies for processing”.

65. Finally, Mr Simonian asserts that the development consent and the environment protection licence, in respect of the development, entitle the Applicant to deal in scrap.

66. On the basis of the evidence, (and I accept Mr Simonian’s evidence) I am not satisfied that the Applicant is relevantly in breach of the development consent or of condition 41 in particular, by virtue of its receiving and handling and processing of aluminium scrap.
E. ADJUDICATION ON THE AMENDED MODIFICATION APPLICATION

67. Since the Applicant has abandoned its proposed amendment of Condition 79 and since the Respondents do not oppose the proposed amendments to Conditions 66, 72 and 75, there remains for adjudication the proposed amendments to Conditions 10, 11, 13, 14, 21, 23, 29 and 41.

68. In adjudicating upon these proposed amendments, s 96(2) empowers the Court to modify the development consent if—

(a) it is satisfied that the development, as modified is “substantially the same development” as the development for which the development consent was originally granted;

(b) ………..

(c) it has notified the application in accordance with the regulations; and

(d) it has considered the submissions made to the notification of the application.

69. In my judgment, the evidence establishes that the power conferred by s 96(2) is relevantly available by virtue of compliance with pars (c) and (d) combined with my finding that the development to which the consent as modified relates is relevantly “substantially the same” as the development for which the 1996 development consent was granted. In particular, I do not consider the elimination of the prohibition on the processing of imported overseas dross by virtue of the proposed modified Condition 41 results in a material change in the originally approved development, such as would result in a failure to satisfy the requirement of par (a).

70. Accordingly, the question becomes how should the Court exercise its statutory discretion, remembering that in determining the application the Court “must take into consideration such of the matters referred to in section 79C(1) as are of relevance to the development the subject of the application”: vide s 96(3).

71. Section 79C(1) relevantly requires the Court to take into consideration

(b) the likely impacts of that development including environmental impacts on both the natural and built environments and social and economic impacts in the locality;

(c) the suitability of the site for the development;

(d) any submissions made in accordance with this Act or regulations; and

(e) the public interest

72. In large measure, the grant of the 1996 development consent subject to the 80 conditions imposed thereon determined the likely environmental impacts of the development and the suitability of the site for the development.

73. The proposed modifications will not, in my judgment, increase the environmental impacts or render the site any less suitable for the development than Talbot J found it to be. In particular, I am satisfied that the changes to the manner in which the plant operates proposed by the modification application will not involve any adverse environmental impacts provided that the conditions of consent (including the modified conditions) are complied with. The air emissions standard imposed by the original conditions of the development consent will continue to govern the operation of the plant. That standard is now reinforced by the conditions of the Environment Protection Licence held under the PEO Act. The modified conditions will provide additional testing and monitoring obligations in respect of the handling and processing of imported overseas dross.

74. Obviously, the submissions (both public an private) received in response to the two public notifications of the modification application are relevant in terms of ss 79C(1)(d) and (e). As I have indicated, the public authority responses generally support the proposed modifications but the private (resident) submissions universally oppose the modifications.

75. In opposing the grant of the amended modification application in the exercise of the Court’s statutory discretion, the second Respondent advanced the following arguments—

(i) the proven breaches by the Applicant of existing conditions of the development consent disentitled it to the favourable exercise of the Court’s statutory discretion under the EP&A Act , s 96(2), more especially so since the purport and effect of the modifications was to diminish the scope of the environmental protection and monitoring regime already secured by conditions of consent;

(ii) the activities of the Applicant in handling, processing and on selling aluminium scrap materials, in apparent excess of the authority conferred by the development consent, suggested an attitude on the part of the Applicant that it could do whatever it liked on the development site;

(iii) the modification application should have been subsumed in the Applicant’s recent development application to extend the range of development carried out on the development site because that process would have subjected the proposed modifications to the discipline and scrutiny of the environmental impact assessment processes of the EP&A Act;

(iv) whereas the original development application was required to be supported by a preliminary hazard analysis, the proposed modifications were not supported by a supplementary hazard analysis. Moreover, the hazard analysis previously undertaken did not have factored into it the material changes to the present arrangements by virtue of (i ) the processing of overseas dross; and (ii) outdoor loading and unloading of dust and ash waste materials;

(v) the suggested Protocol for inspecting overseas sourced dross was too complex to be reasonably expected to be effective.

76. In my judgment, the proposed amendments to conditions 10, 11, 13, 14, 21, 23 and 41 and the adoption of a new condition 14A ought reasonably be granted in the exercise of the discretion conferred by the EP&A Act, s 96(2) having regard to all my findings on the relevant issues in terms of the EP&A Act, s 79C(1).

77. However, the amendments to conditions 23 and 41 should be subject to an obligation for the Applicant to prepare a supplementary final hazard analysis to take into account the changes to the operation of the plant proposed by modified Conditions 23 and 41. This should be undertaken along the lines of Condition 34 of the development consent and it should occur prior to the taking of action pursuant to the modified conditions 23 and 41. Additionally, for the reasons earlier given, Condition 41 should be amended to factor in the additional testing of the emissions from the processing of overseas sourced dross recommended by the Joint Report (Exhibit 12) adopting and extending Mr Bennett’s suggestions (Exhibit B/1).

78. At this stage, of the operation of the plant, particularly at the threshold of accommodating the proposed changes, conformably to the amended conditions, I do not think that there should be any relaxation of the obligations imposed by condition 29 in respect of providing the Council and the EPA with a copy of the complaints register at monthly intervals.

79. In so concluding, I do not accept the second Respondent’s submissions. In particular, I do not find that the Applicant has been deliberately and inexcusably delinquent in the observance and performance of its obligations or that its breaches of Condition 21 (explained but not justified by Mr Simonian) disentitle it to the favourable exercise of discretion in this case. It is true that its performance has been submitted to “a fine tooth comb” scrutiny by the second Respondent in these proceedings. But this has neither been unexpected nor oppressive and the Applicant has survived the scrutiny, albeit not without proven blemishes which have been explained but not excused.

80. It behoves the Applicant, faced with an entirely understandable scrutinising and vigilant local community, to be even more conscientious and meticulous in the observance and performance of its obligations under the modified development consent.

81. Before leaving the case, I would make some additional observations. Firstly, it is apparent that there is significant ill-feeling between the second Respondent and the Applicant. Despite this, I did not find that it has coloured the evidence given by Mr Kelly and Mr Simonian. There was no direct conflict in their evidence and I have generally accepted their respective testimonies as being honest and reliable. Secondly, the second Respondent has criticised the EPA and the Minister’s Department for what he claims is their poor record in enforcing the conditions of development consent (the Department) or the conditions of the Environment Protection Licence issued under the PEO Act. Much of that criticism appears to be founded on the responses to Mr Kelly’s several complaints made against the Applicant’s operation. Whereas, I can understand the second Respondent’s dissatisfaction that his complaints have not been generally successful, this provides no basis for any adverse findings to be made against the EPA or the Minister’s Department. However, I would emphasise the importance of the due and proper enforcement of the regulatory regime for environmental protection, both in terms of the conditions of the development consent and of the Environment Protection Licence, for without the proper enforcement of environmental controls, no matter how soundly they may be based, they may fail to achieve their important objectives.

82. I make these general observations for their self-evident importance and not by way of making any adverse findings against either the EPA or the Department, which in my judgment have not been established by the second Respondent.
F. CONCLUSIONS AND ORDERS

83. For all the foregoing reasons, I am disposed to exercise the statutory discretion conferred by the EP&A Act, s 96(2) by granting the amended modification application sought (except for the proposed amendment to Condition 29) subject to the Applicant agreeing to the amendments I have proposed to Condition 41 and to the preparation of a supplementary final hazards analysis in respect of the changes to the development in the amended modification application.

84. The parties are directed to bring in short minutes within 21 days to give effect to my determination, on the assumption that the Applicant will agree to the additional requirements If no such agreement is forthcoming, the matter may be restored on three days’ notice.

85. The exhibits (other than Exhibit 13) may be returned and there is no order for costs.