Weston Aluminium Pty Limited v Alcoa Australia Rolled Products Pty Limited [2004] NSWLEC 551 | Case summary

EX TEMPORE JUDGMENT 1 Lloyd J: The applicant, Weston Aluminium Pty Limited, claims the following relief against the respondent, Alcoa Australia Rolled Products Pty Limited. ` 2 Firstly, a declaration that the use of certain land at Yennora for the processing of aluminium dross other than aluminium dross formed as a result of the respondent's operations on the premises is in breach of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). 3 Secondly, a declaration that the use of the premises for the processing of aluminium dross other than aluminium dross formed as a result of the respondent's operations on the premises is prohibited by Holroyd Local Environmental Plan 1991. The applicant also claims consequential relief. 4 The parties have attempted to refine the issues and after a number of drafts the applicant has furnished a document called, "Applicant's Amended Statement of Issues" in which it is said that the applicant seeks the determination of the following questions: 1. Can the respondent lawfully treat, process or reprocess any material containing aluminium pursuant to the Environmental Planning and Assessment Act 1979 ("the Act") in the can reclamation plant erected [on certain land] at Yennora North other than: (a) used beverage cans pursuant to development consent 80/40 dated 25 February 1980; and (b) aluminium dross produced by Stage 1 of the remelt facility erected [on the adjoining land] pursuant to development consent 81/254 dated 4 September 1981? 2. If the answer to question 1 is "yes", what material containing aluminium can the respondent lawfully treat, process or reprocess in [its] can reclamation plant pursuant to the Act? 5 The respondent on the other hand frames its Statement of Issues slightly differently in the following way: Does any applicable development consent prohibit the use of dross as a feed material for Alcoa's operations on the Yennora site, and if it does, does it prevail over any other development consent which does not relevantly prohibit such use. 6 The facts are rather complex and it is for that reason that I deliver a judgment now whilst they are relatively fresh in my mind. The Court has been considerably assisted by an agreed statement of facts prepared by the solicitors for the parties and I recite some of the facts by reference to that document and by reference to evidence that has been tendered during the course of the hearing. 7 The respondent occupies and uses certain land at Yennora for its industrial activities. The site is a large one and is bisected by a road known as Nelson Road. That part of the land which lies to the north of Nelson Road is referred to as Yennora North and the balance of the land is referred to as Yennora South. During the period from about 1962 to 1979 Comalco Aluminium Products Pty Limited ("Comalco") developed Yennora South and some adjoining areas for use primarily as an aluminium remelt and semi-fabrication plant. A number of development consents and approvals relate to such use. 8 Pursuant to development consent No. 74/43 a rotary furnace was installed on Yennora South and became known as "RF1". The following materials were processed in RF1: used beverage containers; dross produced as a by-product of the remelt facility at Yennora South; and other aluminium materials coated, treated or in some other way containing lacquers, paints, oils or other substances making them unsuitable for direct processing in the remelt furnaces. 9 Before the installation of RF1, dross which was produced at Yennora South as a by-product of the remelt facility had been processed in a dross bucket or barrel. As I understand it, dross is a by-product or waste material in the production of aluminium. My understanding is that it is some kind of aluminium oxide and might be described as waste or scrap metal. 10 In the early to mid 1980's Comalco obtained a number of consents to carry out its operations at Yennora North. I now refer to those consents. Firstly, on 4 January 1980 the council granted development consent No. 80/5 for the use of certain parcels of land on Yennora North for Stage 1 of a proposed can reclamation plant consisting of one bag house, one rotary furnace and can reclamation facility and storage area and the like. The consent went on to state "no consent is given or implied for any other industrial activity". 11 It seems that that consent was then superseded by a later consent on 25 February 1980, development consent No. 80/40. That consent expressly states that it supersedes development consent No. 80/5. By that consent, consent was granted for the use of certain parcels of land at Yennora North: … for the erection of a Stage 1 of a can reclamation plant consisting of 1 bag house, 1 rotary furnace, can reclamation and storage areas together with a can buy-back centre; and the like and no consent is given or implied for any other industrial activity,… 12 The consent was granted subject to a number of conditions, including condition 20 which was as follows: No consent is given or implied for any development other than Stage 1 works shown hatched on plan P34795-0 received by the council on 16 January 1980 and also the can buy back centre shown on this plan. 13 In accordance with settled principles in interpreting what is the subject of this consent it is not permissible to look at any other document other than a document either expressly or impliedly referred to in it. In this case it is permissible to look at the plan referred to in condition 20 as forming part of that consent. That plan is attached to the consent and it shows a number of buildings. It shows a can buy-back centre, a can reclamation building, a can reclamation storage building and a rotary furnace. 14 There is a dispute between the parties as to what may be processed in this plant. It is clear however to me looking at the document as a whole that the only things that can be reprocessed as a consequence of this consent are cans apparently reclaimed from the market. 15 There were two other consents in 1980. One is development consent No. 80/92 granted on 9 April 1980 "for the erection of extensions to the previously approved can reclamation and buy back centre." The consent is subject to a number of conditions including condition 17 relating to the provision of car spaces and condition 21 which reads: No consent is given or implied for any development other than Stage 1 works shown hatched on plan P34795-0 received by Council on 16 January, 1980 and also the can buy back centre shown on this plan. All other stages require the prior consent of Council. 16 The other 1980 consent is the consent to building application No. 80-182. The consent is for the following: The amended application for permission to add another bay to the rear of the Rotary Furnace Building (being that part of building work shown on Drawing No. 033212 - GA1 […] has now been approved subject to the following conditions - 1. Compliance with the conditions set out in Development Consent No. 80/92 dated 9 April, 1980. … 17 The plan that is expressly referred to in the consent is drawing No. 033212-GA1 which shows a building extension to the rotary furnace building. 18 On 20 May 1980 it seems that there was a further consent to building application No. 80/182 because it is described as building application "[p]art 80/182". It also seems that that this was for the installation of a bag house. The bag house was also approved subject to conditions including: 1. Compliance with the conditions set out in development consent No. 80/5 dated 4th January, 1980. 19 As I have indicated, development consent No. 80/5 was subsequently superseded by development consent No. 80/40. 20 According to the statement of agreed facts, sometime during the period from mid 1980 to 1981 Comalco duly extended the rotary furnace building on Yennora North pursuant to development consent No. 80/92 and building approval No. 80/182, to which I have referred. 21 Comalco then relocated from Yennora South those parts of RF1 which it considered were relocatable to the extended rotary furnace building on Yennora North. The remainder of the rotary furnace on Yennora North was built from new parts. The rotary furnace on Yennora North, while comprised of both new parts and parts from RF1, continued to be known as RF1. 22 During the period 1981 to 1985 Comalco erected and commissioned a new remelt facility on Yennora North pursuant to development consents Nos. 81/254 and 85/1. This was on land described as lot 23 DP 606744 within Yennora North. According to the development consent, consent was granted as follows: Pursuant to s 92 of the Act [the EP&A Act ] notice is hereby given of the determination by the Council of the Municipality of Holroyd, being the consent authority, of the abovementioned development application relating to the land described as follows: Lot 23, D.P. 606744 on the south-western corner of Norrie Street and Loftus Road. The development application has been determined by the granting of consent subject to the conditions specified in the attached Schedule "A". 23 The attached Schedule A states: THE COUNCIL OF THE MUNICIPALITY OF HOLROYD HEREBY GRANTS CONSENT for an aluminium remelting facility generally in accordance with plans submitted to Council on 26 June, 1981 … and the like and no consent is given or implied for any other industrial activity, subject to the following conditions … 24 There then follows a number of conditions including condition 19 which reads: Disposal of liquid effluents and solid wastes being strictly in conformity with the details set out in items 4.2 and 4.3 of the Environmental Impact Statement prepared by Crooks, Michell, Peacock, Stewart Pty. Limited, dated May 1981. 25 In construing what is consented to by this consent it is in my opinion permissible to have regard to the development application: See Halglide Pty Limited v PT Ltd; Blacktown City Council and McNamara Property Management Pty Ltd (1990) 71 LGRA 215 at 218 to 219. This follows from the express reference in the consent to "the above mentioned development application" and that "development application" having then been the subject of the determination. 26 The development application drawings are expressly referred to in the consent, which states "… in accordance with the plans submitted to Council on 26 June 1981". Those plans are now Exhibit 1 in these proceedings. They show a new plant, a new covered scrap storage area, a dross treatment area and associated facilities such as computer room, control room, services room, offices and the like, and situated next to the existing can reclamation area, the existing rotary furnace and the existing slag storage which had been previously approved. 27 The development application which was the subject of consent No. 81/254 includes an annexed environmental impact statement. For the purpose of understanding what activities were being consented to it is permissible to look at the environmental impact statement as well. The environmental impact statement describes what is proposed in the melting furnaces. In particular reference is made to the removal of dross. It refers to the existing remelt facility located in Yennora South. It states that scrap aluminium is stored in bins which are then transported to the adjacent melting furnace charge preparation area and then utilised in the process. The description of the existing remelt facility continues as follows: Removal of dross (refer Appendix 3) is manually carried out through narrow doors by raking the top of the molten metal charge into tubs constructed in two sections. Dross is collected in the top of the tub and trapped molten metal falls into the lower level of the tub. The dross is then cooled and later processed by the rotary furnaces (at the Yennora North site). 28 Then there is a description of the proposed plant in which it is said that the process flow chart for the proposed remelt facility is similar to that for the existing remelt facility. Again, it is said that the recovered dross will be processed by the nearby existing rotary furnaces. (The reference to recovered dross is a reference to dross recovered from the proposed remelt facility.) A further description of what occurs appears in the environment impact statement. Importantly for present purposes it is item 4.3 of the environmental impact statement, which is expressly referred to in condition 19 of the consent. Item 4.3 is headed "Generation and Disposal of Solid Waste". Item 4.3.1 is headed "Sources and quantities", and states: The rate of dross formation will be significantly reduced in the new remelt plant because of lower operating temperatures (11000C maximum), a reduced melt time, and furnace pressure control which will be maintained at a value close to atmospheric pressure, thereby eliminating the present problem of uncontrolled excess air in the furnaces during the melting process. With the total plant remelt capacity being increased from 66,000 tonnes p.a. to 90,000 tonnes per annum, the total volume of dross produced will remain at current levels. It is therefore anticipated that the volume of slag and bag house dust generated from dross treatment in the adjacent rotary furnace complex will remain at current levels. Minor annual quantities of solid waste will be generated by the metal filter (Refer 3.4.2.5) 29 Item 4.3.2 is headed "Dross handling", and states: Dross tubs when full will be transferred under weather proof cover to the dross storage area for cooling prior to charging into the rotary furnace. 30 Item 4.3.3 is headed "Solid waste disposal", and states: As described in 4.3.1, slag and bag house dust from the rotary furnace operation and minor quantities of solid waste from the metal filter are disposed off site by a licensed disposal contractor. 31 I refer again to condition 19 of the development consent, which states: Disposal of liquid effluent and solid wastes being strictly in conformity with the details set out in items 4.2 and 4.3 of the Environmental Impact Statement… 32 The effect of condition 19 is to allow the continuance of the previous practice of taking dross from the previous remelt facility at Yennora South and its reprocessing in the remelt facility (RF1). That is, the new remelt facility at Yennora North, the subject of the development consent, was to be able to dispose of solid waste - that is, dross - into the rotary furnace (RF1). 33 On 12 December 1984 there was a development application for what was described as Stage 2 of the Comalco Remelt Facility at Yennora North and was the subject of a consent granted on 3 January 1985, development consent No. 85/1. That consent reads: Pursuant to Section 92 of the Act notice is hereby given of the determination by the Council of the Municipality of Holroyd, being the consent authority of the abovementioned development application relating to the land described as follows:- Lot 23, D.P. 703309 Loftus Road, Yennora. The development application has been determined by granting of consent subject to the conditions specified in the attached Schedule "A". 34 It seems to be accepted by the parties that the reference to deposited plan 703309 is a misnomer. Again the reference to "the abovementioned development application" and "the development application" having been determined, permits recourse to the development application to see just what it was that was being approved. Condition 21 of the development consent is as follows: The Yennora South Remelt facility is to be decommissioned once the remelt facilities, the subject of this consent, are operational. 35 The plans for this development show development within Yennora North adjoining that which is the subject of development consent No. 81/254. 36 In about 1996 Comalco sold its operations at Yennora to a joint venture between the respondent and Kobe Steel Australia Pty Limited, which operated under the name Kaal Australia Pty Limited. 37 In September 2000 Kaal Australia Pty Limited advised the New South Wales Environment Protection Authority of the fact that it was currently processing some of its own dross in the rotary furnace when used beverage cans were in low supply. An application was made to vary its licence to allow the acceptance of dross from its Point Henry facility in Victoria and its use in the rotary furnace. It seems that since about that time dross generated at Point Henry has been utilised as feedstock for the can reclamation facility the subject of development consent No. 80/40. What happens, as I understand it, is this - and again I now return to the statement of agreed facts - the respondent manufactures aluminium products at Yennora and those manufacturing processes include: (i) The remelting of various types of aluminium materials including primary aluminium ingot, clean aluminium scrap material and aluminium obtained from the rotary furnace; (ii) The rolling of the remelted aluminium into thicknesses appropriate for different types of aluminium product; (iii) The processing, that is, melting in a rotary furnace (now called RF3) of used beverage containers (that is, aluminium cans), dross pot bottoms, crucible pourings and other types of aluminium scrap to produce molten aluminium which is then used in the remelt facility; and (iv) The preparation of the rolled product into forms suitable to the intended purpose of that product. 38 The applicant says that the consent for the can reclamation plant including the rotary furnace at that plant does not allow the respondent to use as feedback any dross imported from Point Henry. The respondent on the other hand says that none of the relevant development consents specify, and in particular do not restrict, the type of feedstock that may be used in that plant. That in a nutshell is the essential issue between the parties. The respondent also says that the consent for the remelt facility, that is No. 81/254, was a consent for a plant which incorporated and included the existing can reclamation plant and may be seen as encompassing that operation as well. 39 As I have said, in order to determine what is consented to one is entitled to look at the development consents and any documents that may be referred therein expressly or by inference. 40 I must say that in looking, as I am permitted to do, to the development application and the environmental impact statement I am unable to agree with that submission. According to the plans, that application relates to a discrete portion of lot 23, namely the unoccupied area adjacent to the existing can reclamation facility. The two applications are separate and discrete but not entirely unrelated. They are not entirely unrelated because of condition 19 of development consent No. 81/254, which not only enables but requires the disposal of liquid effluent and solid waste to be strictly in conformity with items 4.2 and 4.3 of the environmental impact statement to which I have referred. 41 This continues the previous practice of the disposal of dross from the rotary furnace that existed in Yennora South in the rotary furnace in Yennora North. Apart from that, the respondent is limited to the express terms of the development consent No. 80/40. The importation of dross from the respondent's Point Henry facility was not part of the development application. 42 As I have said, that was for a can reclamation plant and "no consent is given or implied for any other industrial activity". So we have here a case where we have a can reclamation plant with a rotary furnace processing cans, as it is permitted to do, and processing dross from the remelt facility on the adjoining land as it is not only permitted but required to do. That is the extent to which the respondent is permitted to have an input by way of feedstock into the plant at the can reclamation plant. 43 That, I think, means that the applicant is generally successful but I have a difficulty in framing appropriate orders to be made and I direct the parties to bring in short minutes of order to give effect to this judgment. TOMASETTI: Your Honour, did not deal with, as I understood it, the argument that processing of dross in the can reclamation rotary furnace was only permitted with respect to Stage 1 of the remelt facility as opposed to Stage 2. 44 HIS HONOUR: I'll just look at the conditions of consent of Stage 2. As there is no condition of consent in Stage 2, which is the equivalent of condition 19 of Stage 1, then the reprocessing of dross is limited to that from Stage 1. When do the parties want to come back with some short minutes of order? ADJOURNED TO WEDNESDAY 25 AUGUST 2004 FOR MENTION

Weston Aluminium Pty Limited v Alcoa Australia Rolled Products Pty Limited

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Judgment (8 paragraphs)

Parties

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