Wollongong City Council v Australian Iron & Steel Pty Limited

[1988] NSWLEC 15

Land and Environment Court

of New South Wales

CITATION:	Wollongong City Council v Australian Iron & Steel Pty Limited [1988] NSWLEC 15
PARTIES:	APPLICANT Wollongong City Council RESPONDENT Australian Iron & Steel Pty Limited
FILE NUMBER(S):	40227 of 1987
CORAM:	Holland J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act, 1979.
CASES CITED:	Ryde Municipal Council v. The Royal Ryde Homes (1970) ; Leichhardt Municipal Council v. Terminals Pty. Limited (1970) ; Slough Estates Ltd. v. Slough Borough Council (1970); Shell Company of Australia Ltd. v. Parramatta City Council (1972)
DATES OF HEARING:
DATE OF JUDGMENT:	09/22/1988
LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: The question for decision is whether blast furnace slag from the Port Kembla steelworks of Australian Iron and Steel Pty. Limited (respondent) is "waste materials" within the meaning of condition 6 of a determination of a development application made by the Minister for Planning and Environment on 25 July 1985 pursuant to s.101 of the Environmental Planning and Assessment Act, 1979.

The development application made 20 January 1984 was for approval to be given to the construction and operation of what was called "an emplacement" for the long term disposal of the steelworks' industrial waste on a large area of the respondent's land at Wongawilli about 14 kilometres south west of the steelworks on the coastal plain below the Illawarra escarpment.

Condition 6 reads:-

"6. All waste materials shall be hauled to the site by rail PROVIDED THAT the Minister may approve road haulage during any period he considers to be an emergency."

The respondent has been transporting huge quantities of blast furnace slag from its steelworks to the site by road in semi-trailers and desires to continue to do so. It claims that blast furnace slag is a "construction material" and that the quantities in question are being transported to the site as permeable material suitable for and to be used in the construction of a base course and "drainage blanket" in the process of preparing the area for the emplacement of waste materials. It contends that the blast furnace slag in question is therefore not a waste material within the meaning of condition 6.

The Wollongong City Council (the applicant) rejects that contention, claims that the blast furnace slag is waste material within the meaning of the condition, seeks a declaration to that effect and an injunction to restrain the delivery of the material to the site other than in accordance with the condition.

Pursuant to a direction that the Minister had given under s.101(a) of the Act, the respondent's development application had been referred to the Secretary of the Department of Environment and Planning pursuant to s.101(2)(B) and the Minister had directed an inquiry to be held in accordance with s.119 of the Act. The respondent had furnished an Environmental Impact Statement (EIS) prepared in August 1983 and a Supplemental EIS containing an assessment of a modified design dated January 1984 in support of its development application.

For the purpose of construing condition 6 two positions are taken. The applicant submits that the condition is to be construed in the light of the EIS as well as the terms of the determination by the Minister in which it appears. The respondent contends that only the latter may be looked at and the EIS must be disregarded in arriving at the proper meaning of the condition.

The Council submits that in either case the meaning to be given to waste material must include blast furnace slag. The respondent submits that in neither case does a proper construction lead to that conclusion.

Blast furnace slag is produced in the process of steel manufacturing. It is the by-product of the manufacture of molten iron and results from the fusion of limestone and other fluxes with the ash from coke and the siliceous and aluminous components of the ferrous burden. The slag floats on the surface of the molten iron in the furnace and is separated by a gravity process when the furnace is tapped. It is cooled in the respondent's slag pits.

At the slag pits the blast furnace slag is dug with a loader which separates out pieces of iron still mixed with it. The residue is in a wide variety of sizes and in this state is usable and saleable as a material for use in engineering works such as road making, pavements and heavy filling, particularly as a water permeable base or layer in drainage works.

It may also be processed by crushing for use as road base or, in place of blue metal, in concrete aggregate or it may be granulated for use as a replacement for sand.

The steelworks produces about 1.2 million tonnes per annum which is either used or disposed of as a construction material for one or more of the purposes just mentioned or, if not so utilised, stockpiled. If surplus stocks accumulate they are dumped; but it is claimed that no blast furnace slag has been "dumped" in the last 5 years. The respondent estimated that out of the annual tonnage expected to be produced, about 60,000 cubic metres would be surplus available for disposal by emplacement but that most of that would be required for construction purposes at the Wongawilli site.

Until recently, the respondent was willing to give the slag away free of charge to get rid of it. Considerable quantities were supplied to the Council for roadbuilding and drainage works at no cost except the cost of transport and an indemnity against claims and liability arising from the respondent's transport, tipping and handling of the material. However, a recent change of policy has seen the respondent charging $2 to $15 per tonne for the slag, depending on whether it was processed or not.

These proceedings were commenced on 28 October 1987. Up to 2 October 1987 the respondent had hauled by road to its emplacement site about 30,000 tonnes of unprocessed blast furnace slag of which it says about 25,000 tonnes were used in the construction of drainage works in an area of about 1 hectare in part of Sections 1 and 2 in Stage 1 of the development of the site.

Works in that area were the subject of a document containing "Agreed Conditions and Methods of Operation" for Sections 1 and 2 which had been agreed between the parties and given a formal approval by the Council on 3 July 1986. However, the Council had objected to road haulage of the blast furnace slag and on 22 September 1987 gave notice of its intention to take injunction proceedings to stop it unless appropriate undertakings were given. Such undertakings were given and the deliveries by road ceased on 2 October 1987. The respondent is willing to continue to give undertakings in lieu of injunctive relief if the question of construction goes against it.

There was evidence that in the whole area of the emplacement site the respondent expects to dispose of 11 million cubic metres of waste material of which 5 million cubic metres will be disposed of in the agreed areas of Sections 1 and 2. To complete the drainage works it is estimated that 170,000 tonnes of blast furnace slag will require to be delivered to the site in addition to the 30,000 tonnes already delivered.

The reason given for road instead of rail delivery is that the rail unloading facility at Wongawilli contains a grid on to which the material is unloaded and the large and irregular sizes of the blast furnace slag in its "run-of-pit" or uncrushed state will not pass through the grid. Consequently it needs to be transported by road; but the question is whether that would offend Condition 6 and that depends on whether blast furnace slag is "waste material" within that clause.

I propose to express my conclusions on the matter taking each of the positions for which the parties contended and dealing with their arguments as I go along.

In my opinion, Condition 6, on its proper construction, without regard to the contents of the Environmental Impact Statements, applies to blast furnace slag. This, I think, is the correct interpretation based on the contents of the Minister's Determination by itself. The document is Exhibit "B" here.

The Determination names the applicant as Australian Iron and Steel Pty. Limited, recites the statutory steps that were taken in dealing with the application and states that the Minister determines "the application by granting consent to the application subject to the following conditions".

It is debatable whether and, if so, to what extent the original application may be looked at in interpreting a letter, notice or other instrument of consent: see Ryde Municipal Council v. The Royal Ryde Homes (1970) 19 L.G.R.A. 321 at 323-324; Leichhardt Municipal Council v. Terminals Pty. Limited (1970) 21 L.G.R.A. 44 at 50-51; Slough Estates Ltd. v. Slough Borough Council (1970) 2 W.L.R. 1187 at 1190.

The original application form and accompanying letter are in evidence but I will put them aside. It is enough to go to the recitals in the Determination to ascertain the nature of the application which the Minister was determining.

Recital (b) reads in part:-

"(b) An application for the emplacement of coal washery refuse and industrial waste (hereinafter called "the proposed development") on the land shown shaded red on the plan described as Figure 1 in the Supplementary Environmental Impact Statement dated January, 1984.... (hereinafter called "the site").... was received by the Council from the applicant, and referred by the Council to the Secretary of the Department...."

(It is common ground that at least the plan referred to is incorporated in the determination and may be looked at; but on the present issue the plan is of no assistance except to indicate the magnitude of the area and general nature of the environment).

Some of the conditions accompanying Condition 6 are:-

"2. Emplacement of waste materials at the site shall cease on the date twelve years from the date of this consent PROVIDED THAT the Minister may upon written application by the applicant permit emplacement to continue for such further period as he thinks fit.

3. The applicant shall, prior to the commencement of emplacement or such further period as may be agreed to by the Director, submit for the approval of the Council design plans prepared by a suitably qualified engineer setting out details of:

(a) the approximate annual volume of waste materials to be emplaced at the site over the twelve year period commencing on the date of this consent;

(b) the proposed location and staging of emplacement and proposed drainage works over that period; and

(c) the proposed final landform.

4. Emplacement of waste materials shall not take place except to the west of Jersey Farm Road.

7. The applicant shall construct a rail unloading facility on the site generally in accordance with the Plan No. PROP22418 dated 16 August, 1984 a copy of which is deposited in the offices of the Department.

8. The compaction and levelling plant on the site shall not be used except between the hours of 7.30 a.m. and 5.00 p.m., Monday to Friday.

9. Trucks shall not move emplacement materials from the rail unloading facility to the active working faces of the site except between the hours of 7.30 a.m. and 5.00 p.m., Monday to Saturday."

Many of the conditions (there are over forty) demonstrate concern for the environmental impact of the whole operation and the various activities involved in it and lay down numerous preventive and protective restrictions and controls directed to protection of the environment and the amenity of the neighbourhood.

The respondent's argument concentrated on the expression "waste materials" in Condition 6, submitting that these were ordinary English words with no technical meaning to be concerned about, and it was simply a question of examining the evidence relating to blast furnace slag and the uses that could be made of it to decide whether that material could properly be considered as waste. It was submitted that in its ordinary meaning "waste" connoted matter that was useless, worthless, something to be cast aside. Applying that meaning to the facts about blast furnace slag proved by the evidence before the Court, it was submitted that, in the present case, the answer to the question whether that material is "waste" is, "It depends". It depends on whether at the time the question is asked the material under consideration is useful or saleable because, if it is and is being dealt with as such, it cannot be said to be waste material; if it is not or is not being dealt with as useful or saleable it is waste material.

On this approach, the question whether the respondent's blast furnace slag delivered to the emplacement site is waste or not has to be asked at the point of delivery from the respondent's steelworks and at that point a distinction has to be drawn between slag that is being delivered for the purpose of and intended to be used in the construction of drainage or other engineering works and that which is merely being disposed of as useless, unsaleable or surplus to requirements. The former is not waste and transportable by road without breach of Condition 6. The latter is waste and must be transported by rail.

In my opinion the respondent's argument breaks down at the outset and fails to honour the rule that words are to be read and understood in the context in which they are found.

Whilst the word "waste" is an ordinary English word in common use it is a relative word and therefore capable of variations of meaning according to the context. Reliance was placed on the Shorter Oxford English Dictionary where, as a noun, "waste" is given the meaning:-

"Refuse matter; the useless by-products of any industrial process; material or manufactured articles so damaged as to be useless or unsaleable;"

and, as an adjective, the meaning:-

"Of materials, etc.: Eliminated or thrown aside as worthless after the completion of a process: refuse. Of manufactured articles: Rejected as defective; also, produced in excess of what can be used."

The Macquarie Dictionary was also relied on. It lists 35 meanings of which the respondent chose:-

"17. Anything unused, unproductive or not properly utilised; 3l. left over or superfluous; to utilise waste products of manufacture; 32. having served a purpose and no longer of use; 33. rejected as useless or worthless, or refuse: waste products."

Another one listed is:-

"22. Anything left over or superfluous, as excess material, by products, etc., not of use for the work in hand."

The dictionary meaning last quoted points up a distinction in respect of manufacturing by-products between those that are useless or worthless for any other purpose and need to be dumped and those that, while useless or worthless for the task at hand are useful or valuable for unrelated purposes and capable of being used or disposed of for those purposes. The first of these categories is "waste" in all circumstances but the second is "waste" only as regards the manufacturing process. It is this second sense in which, in my opinion, the word "waste" is to be understood in the context in which it appears here.

The context is all important in cases like the present. We are not dealing with an Act of Parliament. An overtechnical approach to the meaning of the language used in conditions attached to permits and approvals is, as a general rule, not called for: see Weigall Constructions Pty. Limited v. Melbourne and Metropolitan Board of Works (1972) 30 L.G.R.A. 333 at pp.351-352. As Wilmer L.J. said in Hall & Co. Ltd. v. Shoreham-by-Sea Urban District Council (1964) 1 W.L.R. 240 at p.245, "I do not think that the words used by a local authority in imposing conditions are to be scrutinised in the same way as the words used by a parliamentary draftsman".

The planning authorities here were faced by the respondent's application with a problem for the environment and local government in the area of a proposal permanently to dispose of, for at least 12 years and possibly much longer, huge quantities of unwanted materials produced by a big steelworks located in the local area by transporting the materials from the steelworks to a large piece of the respondent's land 14 kilometres distant but in the same local area and there "emplacing" the materials to become and remain a part of the landscape for ever.

All this is evident from the Determination instrument itself. As the manufacture of steel and related products is a continuous process, it may be inferred that so too is the production of unwanted materials, materials surplus to the ongoing manufacturing process that, whatever their nature, were destined to find their way from the steelworks permanently to be deposited at the emplacement site. The materials were described in recital (b) as "coal washery refuse and industrial waste" without further elaboration and, as a general term, "industrial waste" is capable of embracing all by-products of the industrial process or processes carried out by the respondent that are surplus to the repondent's industry that are to be got rid of by being delivered to and deposited at the emplacement site. The precise nature of those materials, whether they may be useful to the respondent or useful or saleable to others and in what manner they are dealt with at the site and for what purpose are not considerations to which Condi

tion 6 is directed. That condition is directed to the method of transportation as to which such distinctions are immaterial. Similarly, they are not considerations to which Conditions 2, 3 and 4 are directed when they refer to "waste materials".

On the respondent's argument blast furnace slag carried to the site is waste or not waste according to what use is to be made of it at the site; but, whatever use is made of it there, it is by-product material superfluous to the manufacturing industry carried on by the respondent that has to be got rid of and is got rid of by transporting it to the site, depositing or placing it on the site and leaving it there. The fact that it may happen to be useful or used at the site for drainage or other construction purposes in the process is simply coincidental and is of no consequence from the point of view of environmental control and protection to which the conditions were being directed.

It is for these reasons that I am of the opinion that on the proper construction of Condition 6 in the context of the Minister's determination read as a whole, that condition applies to the blast furnace slag here in question.

If it is permissible in this case to look also at the application and EIS documents the same conclusion follows and, in my opinion, with little room for doubt.

I do not think that it has been decided that application documents may not be looked at for any purpose in construing or determining the application of conditions in a development consent. In the Royal Ryde Homes case (supra), Else-Mitchell J. said, at p.323, ".... the mere approval of an application does not I think necessarily have the effect of incorporating all the matters stated in the application". In the Terminals Pty. Limited case (supra) Hope J. spoke in qualified terms when he said, at p.50, ".... generally speaking regard cannot be had to extrinsic evidence, other than evidence to identify a thing or place referred to in order to interpret such a document as a planning approval...." and, at p.5l, "It may be, however, that in a case such as the present one reference may be had to extrinsic evidence in those circumstances in which that evidence is admissible in relation to an ordinary inter partes document". Documents that are incorporated in the consent by reference are a permissible aid to construc

tion as is "evidence admissible in relation to construction which establishes, or helps to establish, the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the Council": Shell Company of Australia Ltd. v. Parramatta City Council (1972) 27 L.G.R.A. 102 at p.107.

The references in the recitals contained in the determination to the application for development approval and the Supplemental Environmental Impact Statement, whilst not expressly incorporating their contents, except the plan referred to, into the determination, expressly identify the matter under consideration by the Minister that resulted in the determination. In my opinion that makes it permissible to look at them for assistance in, at least, ascertaining the subject matter of the conditions as distinct from adding to or modifying the conditions, their operation or the restrictions or requirements contained in them.

The original application to the Council dated 20 January 1984 described the proposed development somewhat euphemistically as "Emplacement of filling on the company's land"; but a letter of the same date from the respondent spoke of "a proposed refuse emplacement" and enclosed copies of an "amended" Environmental Impact Statement" in the form of the original Impact Statement plus Supplementary Report of the modified design". The letter explained that the documents were prepared in this manner following discussions with the Department of Environment and Planning. The original Impact Statement referred to is Ex. "A"1,2 and the Supplementary Report is Ex. "A"3 in these proceedings. The letter serves to identify all three as part of the application documents that formed the material before the Minister for the purposes of his making a determination.

Ex. "A"1 contains an outline of the proposal which refers to the construction of an "emplacement for the disposal of steelworks industrial waste" and states that it has been designed to hold some 18 million cubic metres of material, will accommodate the solid waste from the Port Kembla steelworks for 18-20 years, providing a long term disposal site for the company's "coal washery reject, slags and miscellaneous construction wastes". Here "slags" are undifferentiated and described as "wastes" (p.l, l.l).

At p.8 there begins a section 2 headed "Nature and Quantities of Waste Materials". At 2.3.1 it is stated that "the waste materials to be deposited at Wongawilli include coal washery reject, steelmaking slag, blast furnace slag and general excavated material (hard waste) from the Steelworks" and, in relation to the subject material, "After cooling with water sprays, blast furnace slag for disposal is taken directly from the slag bays to the emplacement site". Here the material in question is not only clearly and expressly described as "waste materials" but no distinction is made in relation to blast furnace slag taken to the site based on the manner of dealing with it when it gets there. This section goes on to make the statement:-

"The annual production quantities of these wastes from the Steelworks are given in Table I, together with the estimated volumes to be emplaced at Wongawilli. The volumes to be emplaced are based on current (May, 1983) rates of steel production and also on the current quantities of some wastes (notably blast furnace slag and coal washery reject) which the Company is able to dispose of in other ways."

It is to be observed that in referring to quantities of "some wastes" which the company is able to dispose of in other ways, blast furnace slag is expressly included as one of such "wastes". There is no suggestion that because it may be disposed of in other ways, which must be inferred from the evidence to mean as a "construction material", it was any the less to be considered as a waste material so far as the Steelworks was concerned and a material that in its delivery to the emplacement site was intended to be treated as such.

The same description is carried through to the Table 1 referred to above which appears at p.9 of Ex. "A"l. It is headed, "Annual Production of Steelworks Wastes and Quantities To be Emplaced At Wongawilli". Listed is "Blast Furnace Slag", Annual Production 1,130,000 tonnes, 729,000M3. The word "Wastes" in the heading is applied indiscriminately to both the "Annual Production" and "Quantities To Be Emplaced", indicating that there was no intention to restrict the use of the word "Wastes" to only such part of the annual production of blast furnace slag that was to be "emplaced" at the site in the sense of not there being used also for drainage or other construction purposes.

Section 2 goes on to describe each of the waste materials mentioned in 2.3.l and on p.11 at 2.3.4 there is a description of "Blast Furnace Slag" followed by a heading "2.3.5 Other Materials" which begins with the words, "The other steelwork wastes". The word "wastes" is applied by inference to blast furnace slag generally.

Consistently throughout the above document blast furnace slag is included as a waste material no different from any of the others dealt with under the same description. The failure to distinguish that which could be or was in fact disposed of or used for construction or other purposes supports the conclusion that no such distinction was intended and that the expression "waste materials" was used in relation to blast furnace slag in the sense already mentioned, namely, from the point of view of a steelworks, a by-product useless to the industry and so a waste material that had to be got rid of.

Counsel for the respondent sought some comfort from a reference to slag at p.83 where, in dealing with proposed drainage works, it is stated: "additional base drainage provisions will be incorporated as necessary. These will generally be in the form of a drainage blanket formed using slag, with or without the inclusion of drainage pipes as required". It was suggested that this reference was not consistent with all slag being treated as waste; but, in my opinion, it is not inconsistent with all slag being treated as waste from the point of view of conducting a steelworks even though the material might have uses for extrinsic purposes. Nor is it inconsistent with all slag to be delivered from the steelworks to the emplacement site being treated as waste materials even though it may be put to a useful purpose when it gets there.

The Supplementary EIS (Ex. "A"3) adds nothing to the argument but it is necessary to note that, in presently relevant respects, it made no material modification to the development proposal and contains nothing contrary to the conclusions I have expressed.

I referred earlier to a document containing "Agreed Conditions and Methods of Operation" for Sections 1 and 2 (Ex. 1). This is said to be a "by-product" of condition 3(b) of the Minister's determination already quoted. The respondent relied on provisions of this document and work done by it in pursuance thereof to support the distinction it drew between blast furnace slag transported to the site for use as a drainage or other construction material and that taken to the site for emplacement as waste, pointing out that in carrying out already a number of the required works it had transported the construction materials, including blast furnace slag, from the steelworks to the site by road haulage.

Particular reliance was placed upon provisions requiring the construction of a perimeter drainage blanket with finger drains to drain creeks in the area, the specifications for which called for the use of blast furnace slag or coarse coal reject. There was evidence that before these proceedings began 30,000 tonnes of blast furnace slag had been road delivered to the site for the specific purpose of this drainage blanket, it being said that no part of such material was for emplacement as a waste product.

In my opinion, none of this alters the conclusions I have already expressed. The document (Ex. l) is ex post facto and could not alter the meaning of the Minister's determination and, in any event, the document itself provides in its Introduction that it is to be read in conjunction with the Minister's Conditions of Consent granted 25 July 1985. It also provides that the development of the emplacement will be undertaken in accordance with, inter alia, the details contained in the Environmental Impact Statement lodged with the company's development application for the emplacement. There is nothing to suggest that the provisions of the document were directed to altering the meaning of the existing conditions or proceeded upon an assumption that blast furnace slag to be used for drainage or other construction purposes on the site was exempted from the road haulage embargo. Indeed, in referring to "Transport Facilities", the document repeats the substance of Condition 6 with a new agreed proviso that does not aff

ect its meaning:-

"All waste materials will be hauled to the site by rail, unless the Minister has declared an emergency and approves road haulage for that period. The Company will consult with Council prior to making an application to the Minister for declaration of an emergency."

Counsel for the applicant relied on the fact that the document referred to drainage works in two different categories: l. In "Preliminary Works" to be carried out prior to the commencement of "emplacement on the site" (3.1); and 2. In "Placement of Fill material (3.4.8), a sub-heading of "Sequence of Construction" of the emplacement (3.4). He pointed out that construction of the drainage blanket and finger drains (3.4.8.1) was referred to under the heading "Placement of Fill Material" and so treated not simply as a drainage work but also as a form of and first step in the emplacement of fill material. In this latter respect, it was submitted blast furnace slag was not being treated as different from other steelwork wastes to be disposed of by emplacement on the site. Accordingly, he submitted that the 30,000 tonnes delivered for the drainage blanket and finger drains was in any event waste material for emplacement that should have come by rail under both Condition 6 of the Minister's determination and the "Tr

ansport Facility" provision of Ex. l.

In my opinion, these submissions, even if sound in themselves, do not make any difference to the consequences that flow from my earlier conclusions.

They are that in hauling blast furnace slag from the steelworks to the Wongawilli emplacement site the respondent must act in conformity with Condition 6, the applicant is entitled to an appropriate declaration and, in the absence of undertakings, to an injunction to restrain further breaches of the condition.

I should note that at the end of the case the Council contended that the provision as to "Transport Facilities" in Ex. 1 which I have quoted above is an independent ground for injunction relief, additional to Condition 6. Nothing turns on that submission in the view I have taken of the case, counsel for the respondent did not address on it. On its face it does not seem to raise any different considerations on the meaning to be given to "waste materials" for the purposes in question and I do not find it necessary to deal further with it.

The Court's orders are:-

1. Order that it be declared that blast furnace slag is waste material for the purpose of Condition 6 of the Development Consent determined by the Minister on 25 July 1985 in respect of the application made by Australian Iron & Steel Pty. Limited.

2. Liberty be reserved to the applicant Council to apply on two (2) days' notice to the respondent for injunctive relief if appropriate undertakings to refrain from hauling blast furnace slag otherwise than in conformity with the said Condition 6 are not given to (at the applicant's option) the Court or the applicant Council.

3. Order that the respondent pay the applicant's costs of these proceedings.

4. Exhibits may be returned.