Dispersion modelling was extended to include averaging times of one year and a short term interval of five minutes throughout the year. The former was used to assess the potential for chronic effects and the latter was in relation to acute effects. Both were shown to be significantly below the safe limits recommended by Dr Douglas.

The existing exceedances of the ANZECC forage standard shown by the Alcan monitoring are either within the buffer zone established for that plant or at a location where there is no evidence of sensitive agriculture activity. Furthermore Dr Zib was unshaken from his evidence that given the separation between the two plants, there will not be any possibility that the plume from both plants will arrive at one of those locations at the same point in time. The mean annual contribution by the proposed plant will not add any significant value to the concentration of atmospheric fluoride at any location.

Neither Dr Wlodarczyk nor Dr Stephenson were able to identify a causal link to the high incidence of upper respiratory tract problems in the Cessnock local government area. They were not able to suggest that the predicted levels of hydrogen fluoride will have any effect on respiratory problems.

Small particle emissions (PM10) for the highest predicted 24 hour concentration is 20 times below the applicable safe limit set by the EPA for the protection of public health. The EPA limit is 55 per cent of the current guideline value set by the National Health and Medical Research Council (NHMRC).

The emission rate of 1.4 mg/m3 upon which Dr Zib based his modelling was determined from results of emission tests conducted during processing of individual samples of Australian dross in Japan. The results were verified by a Certified Environmental Measurer. Further results obtained from the testing of additional dross samples by Unisearch showed fluoride emission levels lower than those indicated by the Japanese testing. Results of tests on Japanese dross were also available to Dr Zib. From all that test data, the highest level emission was the 1.4 mg/m3 adopted by Dr Zib. The applicant accepts that, in the absence of an analysis of the material which went to Japan, the Court is not able to compare the constitution of that dross with the Material Safety Data Sheet (MSDS) for primary aluminium dross supplied by Alcan and set out in the EIS. Nor can a comparison be made with any other dross likely to be supplied to the proposed plant. However the Court is satisfied that the testing undertaken is sufficient to establish the parameters of the potential emission of fluoride from the process. Such a finding is supported by the acceptance of the test results by the EPA as an appropriate basis upon which to fix the standards which the EPA will apply. Mr Halverson agreed that the predicted emission levels were below the threshold for deleterious effect on sensitive vegetation and that the level of exposure to protect human health is 2,000 times greater than the level required to protect sensitive vegetation. Mr Halverson also stated that, as Alumino has indicated that it can meet an emission rate of 1.4mg/m3 at the bag filter outlet, it is quite likely that the pollution licence issued by the EPA would set that limit upon fluoride emissions and would require the limit to be achieved on a continuous monitoring basis. He added that it is likely that the EPA would impose a requirement that there be an alarm. The Court will require such a condition in any development consent to reflect its own determination of the issue based on the evidence in those proceedings. The applicant will thereby be required to meet an emission rate of 1.4 mg/m3 with the consequence that, if it is exceeded at any time, the operation must forthwith cease. If problems persist there is the prospect for achieving very considerable reduction in the amount of gas discharged through the use of scrubbers.

The first development consent determined by the Minister on 10 November 1994 required the applicant to prepare and present a Waste Management Plan providing details of the way in which the processed aluminium, dross, ash and dust material from the plant would be disposed. The material will be transported from the plant to the fully engineered waste disposal facility operated by Pacific Waste Management at Badgery's Creek. Although the original development consent was declared void by Stein J on 22 May 1995, the applicant prepared the Waste Management Plan. On 20 July 1995, following a review of the Waste Management Plan, the EPA issued a consent to dispose of the waste in the manner proposed.

BHP Engineering Pty Ltd has carried out a preliminary hazard analysis to determine whether any detriment flowing from the hazardous nature of the development outweighs any benefits to be derived. The resultant consequence and frequency analysis indicates that there will be no off site effects from any of the identified hazards at the site and that, accordingly, the facility does not pose a measurable or material risk to surrounding land uses. No evidence was called by the respondents to challenge this conclusion.

After having regard to the whole of the evidence but in particular the evidence of Steven Sylvester, the Technical Manager Risk Engineering Services for BHP Engineering, the Court is satisfied that there is no obvious need for a buffer zone.

It is self evident that the development will provide direct employment during the construction and operating stages. The unrefuted evidence is that this will have a flow on effect within the local economy. Although the residents represented by Mr Maybury have been vociferous in their objections to the proposal, there is also a significant level of support for the development.

It will be possible to view the plant buildings from various locations within Weston and Kurri Kurri. The opportunity for the built form to intrude into the landscape is not significant. It will be set back in excess of 100 metres from the Mitchell Avenue frontage and will have a set back of some 18 metres from the western boundary. A large portion of the site will remain undeveloped. With the exception of the vehicle access way, the area between Mitchell Avenue and the building is to be left in its natural state with the effect that the buildings will be unobtrusive when viewed from public places.

THE OBJECTIVES OF THE ZONING AND PLANNING INSTRUMENTS

The 4(a) zoning reflects the general industrial land use within the immediate vicinity. It must be remembered that there will be a significant community benefit from the establishment of the plant because it will provide a waste management and recycling service for the aluminium industry generally, but in particular for the adjacent smelter at Kurri Kurri and the Tomago aluminium smelter near by. The site is subject to a tree preservation order so that the existing natural vegetation will be maintained in addition to proposed planting of a selection of screening trees around the periphery of the building envelope.

In addition to the salt free rotary furnace technology proposed by the applicant, two other modern technologies were considered. A process using a water cooled plasma gas torch installed in a specially designed rotary furnace was rejected as it has not been fully developed at this stage. The technology has not been tested outside North America and it is not considered to be commercially viable in Australia at the present time. The large amounts of salt used in the rotary salt furnace process create environmental and economic problems. The waste ash contains large amounts of salt, salt vapours are emitted, while greater use of thermal energy is required to melt the salt. The initial cost of the salt and the salt recovery process add to the operating costs.

The salt free process proposed by the applicant minimises the quantity of waste generated. The technology is proven, the waste produced does not contain salt and by comparison to other technologies, energy consumption is low.

The process which will be used at Kurri Kurri has the potential to reduce the quantities of waste from the aluminium dross recycling process almost to zero. The primary smelters at Kurri Kurri and Tomago provide a significant source of dross material in close proximity to the site.

Miss Murrell, in her final address, placed considerable emphasis upon the application of the so-called precautionary principle. I do not think that I do any injustice to what Stein J had to say about the precautionary principle in Leatch v National Parks and Wildlife Service & Anor (1993) 81 LGERA 270 when I reiterate what I said in Nicholls v Director General of National Parks and Wildlife & Ors (1994) 84 LGERA 397 to the effect that the precautionary principle adds nothing to the consideration that the Court undertakes by applying common sense. 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. If the applicant and the Minister are unable to agree on a form of condition, then it may be necessary to hear further argument.

The Court is satisfied that the development application for the establishment of an aluminium dross processing and recycling plant on Lot 796 Mitchell Avenue, Kurri Kurri can be determined by the granting of consent subject to conditions.

The draft conditions of consent filed on behalf of the Minister were generally acceptable to the applicant. However several conditions are in dispute and there is at least one other condition with which the Court takes issue. I have already referred to the evidence of Mr Halverson and the proposal to licence the premises under the Clean Air Act to limit the emission rate to 1.4 mg/m3 fluoride at the bag filter outlet. The Court requires that there be a specific condition of development consent to that effect including the requirement for the installation of an alarm and control which will have the effect of closing down the plant when an exceedance occurs. The applicant and the Minister are directed to confer for the purpose of settling a condition which meets this requirement.

I will deal with each of the conditions which are in dispute between the parties, and the further condition which concerns the Court, separately.

This draft condition requires that the development shall be carried out generally in accordance with the contents of the EIS. There is no specific reference to the attachment A made to the original EIS following the decision by Stein J. Nor are the plans which became Exhibits B, C and D incorporated by specific reference. In order to avoid the prospect of any misunderstanding as to the subject of the approval, Condition 6 should be re-drawn to incorporate attachment A and the subject plans by specific reference.

The applicant and the first respondent have agreed that the word "further" should be deleted from the last sentence and replaced with the words "control and". This condition requires the applicant to obtain pollution control approvals as may be required. Although it is anticipated that the EPA will impose a requirement for there to be a warning device in respect of air emissions in excess of the adopted levels, a further and separate condition is required by the Court to have effect in the manner already outlined above.

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.

I mention, in passing, that the justification for the establishment of the Monitoring Committee is not entirely clear, but having regard to the level of expressed public discontent regarding the proposal, the Court accepts that the opportunity for representatives of the general public to be directly involved in the monitoring process may help to allay the residents' concerns. Condition 22 states that the Monitoring Committee is constituted for the purpose of considering the Annual Report and the need for any required remedial action, in respect of which it shall make representations regarding the operation of the plant and may comment on the monitoring requirements. The parties are directed to give some further consideration to the wording of condition 22 which presently places imperatives upon the Committee which, if not complied with, could technically lead to a breach of the conditions of development consent. Although it is unlikely to have any real practical consequence, the wording should be adjusted to properly reflect the intended operation of the Committee.

This condition requires that the roller shutters at the entrance to the delivery bay should be closed when trucks are dumping. Mr Raymond explained that the requirement would prevent the unloading of a second truck load of dross into a storage bay while a first truck load is being delivered. The size of the storage bay is not sufficient to accommodate two trucks at the one time while the roller doors are closed. Mr Raymond estimated that the operation of the plant with the doors open or part open will only be about 40 minutes per 24 hours or about three per cent of the time. The storage bay dust collector system will operate continuously whenever the plant is operating. It is not clear that the dust collector system will function independently of the operation of the balance of the plant. The Court agrees with the submission by Miss Murrell that the only way of ensuring that there is no fugitive dust during the unloading operation is for the doors to be closed. It is not at all clear that the negative pressure operating within the building will be able to counter the effect of wind turbulence outside the building, particularly when the westerly or north westerly winds are blowing. The short time during which the alleged necessity for the roller shutters to be open during unloading operations is not only evidence in support of the applicant's argument that it does not matter but also the inconvenience caused to the company's operation will be for a limited duration. Ultimately the scheduling of deliveries is a matter which, to a large extent, should be within the control of the applicant. Condition 41 will be imposed in the form drafted by the Minister.

This condition seeks to confine the hours of building or construction work. The Court recognises that it may be necessary to allow construction work to continue up to 4.00 pm on a Saturday. Provided any work carried out on a public holiday or a Sunday is non-offensive and has the express written consent of the council given beforehand, there is no reason why the types of works referred to in the condition should not be permitted on those days provided no power tools are operated. This condition may be amended in the manner suggested by the applicant.

The draft condition submitted by the Minister requires the applicant to construct a suitable modified type "B" intersection in accordance with the requirements of the RTA and council. No evidence from the RTA or the council was forthcoming. The applicant relies on the evidence of its traffic engineer, Robert Caldwell, who reported that a driveway and minor widening of Mitchell Avenue in the vicinity of the driveway will adequately cater for the efficient and safe access for the development. He states that it is inappropriate, unnecessary and most unreasonable to insist upon a type "B" intersection design for a driveway. He notes that the design suggested by him is equal to or above the design standard of a type "A" intersection. Mr Caldwell prepared drawing No. 120.01/1 which is Appendix 4 to his statement of evidence. The drawing illustrates a design which he says will not only adequately serve as safe ingress and egress but enhances safe passage for through traffic. The Court accepts the unrefuted evidence of Mr Caldwell. Condition 65 should be drafted to incorporate the suggested access driveway proposed by Mr Caldwell.

The order of the Court will be that development consent be granted subject to the conditions of consent drafted by the Minister duly amended to take account of the findings of the Court.

The applicant and the Minister are directed to draft and settle an agreed form of order to give effect to the Court's decision.

The exhibits, except Exhibits B, C, D, N and 2 may be returned.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 21 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGEMENT HEREIN OF THE HONOURABLE JUSTICE R N TALBOT