(2) The northern building's ship's head toilet drained to the elevated tank. The sink, basin and shower drained to the absorption area/pit until the use ceased pursuant to the interlocutory orders.
75 I am not prepared to draw an inference that the respondents constructed or caused to be constructed the absorption area/pit to the southern building or the absorption area/pit to the northern building. The respondents, however, used and caused to be used those facilities as part of their operation of a system of sewage management on the premises.
The 2002 works required approval
76 I am satisfied that all of the works carried out or caused to be carried out by the respondents (see [73] above) required approval under s 68 of the Local Government Act 1993, there being no exemption from that requirement. The works required approval as the carrying out of "sewerage works" (the Table to s 68, Part B, item 4) and, in part (that is, the works relating to the toilets and urinal), as the installation, construction or alteration of a waste treatment device or a human waste storage facility or a drain connected to any such device or facility (the Table to s 68, Part C, item 5).
The operation of the 2002 works required approval
77 I am satisfied that the operation of all of the 2002 works (that is, their use as described in [74] above) required approval as the operation of a system of sewage management (the Table to s 68, Part F, item 10 and clause 45 of the Local Government (Approvals) Regulation 1999 and/or s 68A of the Local Government Act 1993). That is, I am satisfied that approval was required to direct human faeces and urine from the toilets and urinal to the various holding tanks, and to direct wastewater from the fixtures within the southern and northern buildings (whether or not that wastewater contained any human faeces and urine) to the sub-surface absorption areas adjacent to the southern and northern buildings.
Use of the premises prior to cessation pursuant to interlocutory orders
78 I am satisfied that the respondents used or caused to be used the premises as part of a marine industry business which they run, known as Aero Marina Pty Ltd. The precise intensity of use of the premises (prior to its cessation consequent upon the interlocutory orders), however, is not clear.
79 I am satisfied that two people occupied the caretaker's flat in the southern building for residential purposes at various times. At least one other person, perhaps more, used the shower and basin facilities in the downstairs section of the southern building. This person appears to have lived on a boat moored off the premises, but used the downstairs shower facilities. Their connection, if any, to the marine industry business is not apparent.
80 The respondents used or caused the use of the northern building for marine industry purposes (although the number of people involved in that activity is not apparent). The northern building has a mezzanine level. Mr Jacobson referred to that level as "the studio", which suggests that that level may have been used for some form of accommodation, but I am not able to make a finding to that effect.
81 At various times, however, up to 14 or 18 boats were moored off the premises, with 4 or 6 boats in dry dock on the premises and perhaps 30 boats in total being present (on or moored off the premises) at any time. I am satisfied that there was (and if use of the premises re-commences, is) real potential for the sanitary facilities at the premises to be used by persons other than those living or working in the buildings.
The greywater policy
82 I consider that the greywater policy is of limited, if any, relevance to the question whether the 2002 works carried out or caused to be carried out by the respondents and the operation of those works required approval. If anything, the policy discloses why approval would be required for all components of the 2002 works and their operation. In particular, the policy explains that greywater (in summary, wastewater from all household facilities which does not contain human waste) has a high potential to contain pathogenic micro-organisms which may be potentially infectious and polluting. (I note, moreover, that greywater is referred to at page 2 of the policy as "sullage").
83 The policy distinguishes between greywater excluding kitchen waste and greywater including kitchen waste. The latter is likely to contain higher levels of micro-organisms than the former. The policy applies only to single domestic premises in a sewered area. The subject premises are not single domestic premises and are not in a sewered area. Hence, the policy is inapplicable to the premises.
84 The policy refers to greywater diversion devices (which do not treat greywater) and domestic greywater treatment systems (which treat greywater). There was debate in this case as to whether the arrangements at the premises involved a greywater diversion device. I consider that debate immaterial for a number of reasons. First, the greywater policy does not apply to the premises. Secondly, the greywater policy has no statutory force or effect. Thirdly, nothing in the greywater policy suggests any exemption from any approval requirement. There is a table of approvals required on page 13 of the policy. That table does not replace the provisions of the Local Government Act 1993 and has no effect on those provisions. Moreover, the table shows, if anything, that approval is required to operate a greywater diversion device but not to install such a device (on the narrow definition of such a device adopted in that policy - in effect, a switch which operates by gravity or pump).
85 I cannot see anything in the greywater policy suggesting that, where the policy applies, it provides an exemption from any approval requirement. If the works carried out or caused to be carried out by the respondents were intended to respond to the policy, then the requirement to obtain approvals from the Council for the 2002 works ought to have been plain to the respondents. Equally, the risks to the environment and public health associated with draining greywater from showers and sinks and the like to absorption areas in the ground, in close proximity to Emigrant Creek in an area with a high water table, ought to have been plain to the respondents. This is particularly so given that the policy makes clear that the characteristics of greywater (unsurprisingly) alter depending upon the characteristics of use by occupants.
86 Nothing in the greywater policy or the circumstances in which the Council provided it to the respondents (that is, the reference to the handwritten note on the policy which I accept to be from a Council officer) required the respondents to carry out the 2002 works, or gave any approval (tacit or express) to those works. The respondents may have elected to rely on the greywater policy, but that reliance was a choice by the respondents (not a requirement of the Council). Any belief that the respondents held that the greywater policy exempted them from the Local Government Act 1993 approval requirements was in error (particularly when it is recognised that the policy does not apply to the premises and does not operate so as to exempt any person from any requirement for approval). As such, I consider the issue that was the focus of much of the respondents' evidence and submissions (that is, whether they had installed greywater diversion devices on the premises) to be beside the point. The point is that the respondents installed or caused to be installed the sewerage works I identified above and operated those works.
87 The greywater policy, at best, is relevant to the intentions of the respondents in carrying out the 2002 works. Intention, however, is not relevant to the question of breach of s 68 (or s 68A). Breach is established by reference to the facts objectively ascertained and not by reference to the respondents' intentions.
Mr Alderson's evidence relevant to the issue of breach
88 Mr Alderson is a chartered professional engineer (civil) with substantial experience in local government and wastewater engineering and management. Nothing in the evidence of Mr Alderson about the greywater policy affects the conclusions that I have reached above. Indeed, Mr Alderson agreed in cross-examination that the greywater policy did not apply to the premises. Hence, his opinion that the systems involved a greywater diversion device is beside the point.
89 Mr Alderson's evidence was otherwise directed to the capacity, adequacy and performance of the systems and the capacity for the elevated tank to the northern building to be accredited. Those matters are not material to the issue of breach.
Did the 2002 works and their use require and have approval?
90 For the reasons I have given above, the carrying out of the 2002 works by the respondents required approval under s 68 of the Local Government Act 1993 (the Table to s 68, Part B, item 4 and Part C, item 5). The use of those works also involved the operation of a system of sewage management that required approval under the Local Government Act 1993 (the Table to s 68 Part F, item 10, and clause 45 of the Local Government (Approvals) Regulation 1999 and/or s 68A of the Local Government Act 1993). The next issue is whether the respondents had approval to carry out and use those works.
91 The respondents relied upon condition 6 of the 23 November 1995 consent as an approval for the carrying out and operation of the works. I consider that reliance to be misplaced.
92 Condition 6 of the 23 November 1995 consent was not an approval to carry out any of the 2002 works or to operate a system of sewage management.
93 First, the consent relates to the northern building and not the southern building.
94 Secondly, condition 6 required the works to be to the satisfaction of the Council's Health and Building Surveyor and Engineer. There is no evidence of that satisfaction. The evidence of Mr Plumb and Mr Spring was to the contrary. Mr Plumb is an Environmental Health Officer of the Council. Mr Plumb was not satisfied with respect to the waste containment systems other than the arrangement in the southern building under which the toilet drained to the septic tank system. Mr Plumb was otherwise dissatisfied with the wastewater arrangements on the premises. He identified three significant risks associated with the arrangements in the southern building ((i) a significant risk of people using the shower being directly exposed to contaminants by the system surcharging, (ii) significant dangers to users of Smith Drive where the waste water is also surcharging, which Mr Plumb described as equivalent to "the throwing of slops into public roads as occurred in the nineteenth century", and, finally, (iii) entry of pathogens into receiving waters, Emigrant Creek, which is tidal, and which forms part of the Richmond River Estuary where oyster growing occurs). As explained below, I find Mr Plumb to be a credible and careful expert with many years of specialised experience and qualifications.
95 Thirdly, nothing in condition 6 suggests that the condition has the effect of waiving any requirement to obtain the approvals required for wastewater systems and operation. That is, if works had to be carried out to comply with the condition, and that work required approval, nothing in the condition waived the requirement to obtain that approval.
96 I also consider that the respondents' submission that the ship's head toilet is a "demonstration model" ancillary to the marine industry use (and thus, presumably, did not require approval) should not be accepted. First, the toilet was not a demonstration model; it was connected to the elevated holding tank and the mains water supply, and, I infer, was used as an ordinary toilet facility in the northern building. Secondly, in order to demonstrate a toilet model, it need only be shown, not connected. Thirdly, even if a demonstration model, all toilets that are installed were required to comply with the Local Government (Approvals) Regulation 1999 (now the Local Government (General) Regulation 2005). The ship's head toilet does not comply with certain basic requirements of that regulation. Finally, this argument came late in the day in submissions and not in any part of the respondent's evidence.
97 I do not consider that the other matters referred to in para 6 of the affidavit of Mr Jacobson sworn 8 September 2005 support the contention that the 2002 works had the approval which they required.
98 I do not accept the respondent's submission that the absence of any record of approval merely demonstrates the absence of the record and not the absence of any approval. In particular, Mr Plumb described the Council's records of sewage approvals as "fairly good" and that he was "reasonably confident" that had there been any approval granted for sewage works, he would have located that approval in the Council's records. Mr Plumb carried out a thorough search of the Council's records. No approvals for the 2002 works were disclosed. I accept Mr Plumb's evidence.
99 Moreover, I accept that components of the 2002 works were incapable of approval because: - (i) the works did not comply with the Local Government (Approvals) Regulation 1999, and (ii) s 89(1)(a) of the Local Government Act 1993 would have operated to preclude the grant of any approval. In particular, all of the evidence (including that of Mr Alderson) is to the effect that the ship's head toilet does not comply with the requirements of the Regulation (cl 13 and Sch 2 para 6). Nor (presently at least) does the elevated tank near the northern building (cll 13,42 and 43).
100 Finally, the respondents did not refer to any application for approval of the 2002 works.
101 The same considerations apply to the use of the 2002 works as part of the operation of a system of sewage management.
102 From the facts that I have found above about the nature and location of the works, I consider that the 2002 works and their use required, but were not the subject of, approval. That is, the works and their subsequent operation were carried out in breach of the Local Government Act 1993.
The operation of the system prior to the interlocutory order
103 The observations and opinions of Mr Spring constitute the Council's primary evidence with respect to the operation of the drainage systems on the premises prior to the interlocutory orders of the Court. Mr Spring is employed by the Council as the On-Site Sewage Management Officer and, as such, oversees matters concerning sewage in Ballina. He is a qualified plumber. He does not presently hold the required licence to carry out plumbing works, but is entitled to hold such a licence. Mr Spring has been employed by the Council since 2002, and has held his present position since 2003. I accept that Mr Spring holds expertise (based on specialised training and experience) relevant to the matters the subject of his expert opinion in these proceedings.
104 Mr Spring first attended the premises in the course of his duties on 4 February 2004, following the Council's receipt of a complaint with resect to odour at Smith Drive. He observed long grass, pooling of slimy green liquid on the ground, and large amounts of algae within this liquid on the road shoulder in front of the southern building on the premises. He also noted a strong scent of effluent. He knocked on the door of the upstairs section of the southern building (the caretaker's unit) and spoke to Vanessa Webb who said she lived there with her flatmate. I accept these observations as accurate (and deal further with Mr Spring's evidence below).
105 Mr Spring returned to the premises on 15 March 2004 with a Council planner, Ms Naomi Hing. They went to the northern building and met the respondent, Ms McMillan. Ms McMillan contacted Mr Jacobson, who arrived shortly thereafter and indicated that as he had legal representation, the Council should deal with his attorney. Mr Spring and Ms Hing left. Mr Spring observed the two holding tanks at either end of the premises and that the ground around them was wet and boggy. I accept these observations as accurate.
106 On 2 April 2004, Mr Spring again attended the premises. The respondents, their solicitor and Mr Plumb were all present. Mr Spring observed the absorption pit area adjacent to the southern building and in part on the road reserve. Mr Spring had a conversation with Mr Jacobson about the depth of the pits that Mr Jacobson said were about 1.5 metres deep, with the groundwater being about one metre deep according to Mr Jacobson. The area was covered by sand. Mr Spring described the absorption pits area as within 25 metres of Emigrant Creek, which is generally consistent with the survey plan. Mr Spring observed two holding tanks servicing the southern building of about 2000 and 3000 litres capacity respectively, plus the absorption pits area. Mr Spring inspected the northern building and the elevated holding tank. The tank outlet was approximately 3.2 metres from the tidal drain leading to Emigrant Creek. Mr Jacobson pointed out an absorption pit area near the elevated holding tank. Mr Spring placed dye in the "sewage management facility" near the northern building (whether this was the tank or the pit I cannot ascertain). In any event, when Mr Spring returned the next day to check the banks of Emigrant Creek for any traces of dye, in company with Mr Jacobson, he found no such traces. I accept this evidence.
107 Mr Spring served a notice of intention to give an order on the respondents on 28 May 2004. On 29 July 2004, Mr Spring attended the premises with a surveyor, Mr Kelly. Mr Kelly carried out certain survey works at the premises including the placement of pegs. Mr Spring smelt a strong effluent odour on this occasion. Mr Kelly gave Mr Spring the survey plan later that day (a copy of which was tendered). On 21 October 2004 Mr Spring caused to be served on the respondents an order under s 124 (item 22 of the Table) to the Local Government Act 1993. I accept this evidence.
108 The s 124 order required the following works:
WORKS REQUIRED. To comply with this Order you must:
Utilise the services of a suitably qualified & competent NSW licensed plumber (NSW Department of Fair Trading requirement), to undertake the following works, so as to meet the technical specifications required by Council:
Southern-most structure, (industrial shed & associated caretaker's residence):
1. Cease discharging domestic wastewater to the public road reserve and into the unapproved and failing absorption pit.
2. Divert the said wastewater into existing holding tanks.
3. Remove all piping used to convey the domestic wastewater to the absorption area situated on the public road reserve.
4. Sanitise and deodorise the area on the public road reserve impacted by the discharge of domestic wastewater from the property. (Fine Ag lime can be used for this).
5. Install an audible and visual level indicator alarm to the holding well. The alarm is to be set so as to not exceed 75% of the holding tanks capacity, or when 3 days flow capacity remains available in the tanks.
6. Enter into a written contract with an approved pump out operator to regularly pump out holding tanks.
7. Submit to Council a copy of the pump out contract.
8. All works carried out on the public road reserve shall be done in a manner that ensures the safety of the public at all times.
9. Council strongly recommends that all services situated in the public road reserve be identified and located prior to the commencement of any works to prevent damage to any public utilities. NB: Telecommunication cables are present in the close vicinity.
10. Plans of any proposed works shall be submitted to Council for approval prior to commencement of works.
Northern-most structure, (industrial shed approved as part of BA 56/79):
You have two options:
1. Under Division 2 of the Local Government (Approvals) Regulation 1999, you are required to make an application to Council for approval to install/construct a SMF. Under the Regulation the application must be accompanied by the following documents:
Plan. The application must be accompanied by a plan, to scale, showing the location of:
(a) the sewage management facility (SMF) to be installed or constructed on the premises, and
(b) any related effluent application areas, and
(c) any buildings or facilities existing on, and any environmentally sensitive areas of, any land located within 100 metres of the SMF or effluent application areas, and
(d) any related drainage lines or pipe work (whether natural or constructed).
Specifications. The application must be accompanied by full specifications of the SMF proposed to be installed or constructed on the premises concerned.
Site Assessment. The application must be accompanied by details of the climate, geology, hydrogeology, topography, soil composition and vegetation of any effluent application areas related to the SMF together with an assessment of the site in light of those details.
Statement. The application must be accompanied by a statement of:
(a) the number of persons residing, or probable number of persons to reside, on the premises, and
(b) such other factors as are relevant to the capacity of the proposed SMF.
Operation and Maintenance. The application must be accompanied by details of:
(a) the operation and maintenance requirements for the proposed SMF, and
(b) the proposed operation, maintenance and servicing arrangements intended to meet those requirements, and
(c) the action to be taken in the event of a breakdown in, or other interference with, its operation.
and
I. Cease discharging domestic wastewater to the pit adjacent to the existing tank.
II. Divert all wastewater into an approved SMF.
III. Install audible and visual level indicator alarm to the holding well. The alarm is to be set so as to not exceed 75% of the holding tanks capacity, or when 3 days flow capacity remains available in the tanks.
IV. Enter into a written contract with an approved pump out operator to regularly pump out holding tanks.
V. Submit to Council a copy of the pump out contract.
OR
1. Alternatively install a NSW Health certified tank/holding well sized according to the relevant regulations and to Councils satisfaction.
and
I. Cease discharging domestic wastewater to the pit adjacent to the existing tank.
II. Divert all wastewater into an approved SMF.
III. Install audible and visual level indicator alarm to the holding well. The alarm is to be set so as to not exceed 75% of the holding tanks capacity, or when 3 days flow capacity remains available in the tanks.
IV. Enter into a written contract with an approved pump out operator to regularly pump out holding tanks.
V. Submit to Council a copy of the pump out contract.
VI. Plans of any proposed works shall be submitted to Council for approval prior to commencement of works.
All works must be in accordance with the performance standards set out in clause 47 of the Local Government (Approvals) Regulation 1999, AS/NZS 3500, AS/NZS 1547, and The NSW Code of Practice Plumbing and Drainage.
109 The respondents appealed against the s 124 order on or about 10 December 2004. This appeal, as noted, was discontinued on 8 April 2005 by consent. The consent orders filed with the Registry provided that:
1. The Applicant discontinues these proceedings.
2. The Applicant shall comply with the Order of the Respondent dated 21 October 2004 made under s 124 of the Local Government Act 1993 in respect of premises situated at Lot 1 DP 605260, No. 14 Smith Drive, West Ballina, NSW within thirty (30) days.
3. The Applicant shall pay the Respondent's party/party costs in the sum of $5,720.00 inclusive of GST and inclusive of disbursements within thirty (30) days.
110 I do not consider that order 2 of the consent orders does anything more than restate the requirements of the s 124 order itself. For this reason, I do not give weight to order 2 in the exercise of my discretion.
111 Mr Spring attended at the premises again on 14 June 2005, with an Environmental Health Officer, Rachel Currie. Mr Spring gave notice of the proposed entry to the premises, which Mr Jacobson denies having received until after the entry had taken place (as noted below, Mr Jacobson relies on this fact, and other entries he says occurred without notice, to support his contention that Mr Spring is biased against the respondents). Mr Spring and Ms Currie spoke to a young man. Mr Spring gave the young man a copy of the notice of entry proposed for the next day, 15 June. For the reasons explained below, I do not accept the respondents' allegations of bias against Mr Spring and, in any event, do not accept that the circumstances of entry to the premises are material to resolving the real issues in this matter.
112 Mr Spring and Ms Currie returned to the premises on 15 June 2005. Mr Spring took photographs around and through the window of the northern building showing the elevated tank and piping and the ship's head toilet. They went to the southern building and met a young man at the gates that had previously been locked. After a brief conversation, they entered the downstairs part of the southern building. Another man came over to them and they had a longer conversation. They continued the inspection. Mr Spring smelt a strong odour of effluent. I accept these matters.
113 Mr Spring and Ms Currie entered the amenity area downstairs in the southern building. Mr Spring saw a shower with boards laid in the bottom of the shower covered in black slime. He removed the board and smelt an extremely strong smell of effluent. He saw algae and slime under the boards. He saw a toilet and a wash/laundry tub. Mr Spring added dye to the toilet and flushed it. He added dye to the tub and ran the tap. The odour in the room increased to the point that Mr Spring began to feel ill. He heard gurgling noises from the shower and observed the green dye surcharging into the shower tray. The tap, at that time, had been running for just under a minute. The odour was so bad that Mr Spring had to leave the room. Mr Spring went to the absorption pits area. He observed that the grass was waterlogged to the extent that it lifted up, floated and moved considerably underfoot when walked upon. He observed liquid flowing across the ground. After a minute or two he saw the green dye flowing across the ground which then pooled in a pool point near the shed. He returned inside and turned off the tap which had been running for about 10 minutes. He saw that the green dye was seeping back into the building and that the shower tray was nearly full. The smell of sewage was overpowering and Mr Spring left the building. After packing up and taking some more photographs, Mr Spring and Ms Currie left. I accept this evidence.
114 Ms Currie gave evidence of the 15 June 2005 inspection in terms to the same effect as Mr Spring. Ms Currie's affidavit refers to Mr Spring using a crow bar to pierce the ground in the area of the absorption pits (which Ms Currie described as having an unusual texture and akin to walking on a waterbed). Ms Currie says that the greywater came through the hole which Mr Spring had created with the crow bar and that, after about 7 minutes, the water which was coming out of the ground was discoloured by the dye. I accept Ms Currie's evidence. I do not see that the differences between Mr Spring's and Ms Currie's evidence, such as they are, are material to the issues in the case.
115 Mr Plumb was not present during the 15 June 2005 inspection. Based on Mr Spring's observations, Mr Plumb gave evidence in his 23 August 2005 affidavit that the situation described by Mr Spring gave rise to three significant risks. Those risks are described by Mr Plumb as follows:
15. Firstly any person using the amenities area of the southern structure is at significant risk of direct exposure to contaminants as a result of the system surcharging. This health risk is increased when the relevant waste originates from more than one person or family which is usually the case in an industrial type situation.
16 During the nineteenth century, the basic principle of protection of health from the dangers of human waste water was to place a barrier between human beings and their waste. In this case the barrier is non-existent. Worse still, users of the showering facility are exposed to what is in fact a de facto grey water storage facility. Because the system's absorption pit is defective, the pipes leading to the system and the shower floor and waste store and grey water in circumstances where direct skin contact with it is highly probable. The facility is not clean and is impossible to clean or disinfect due to the organics and suspended solids present in the surcharging waste water. Stored grey water rapidly becomes septic and gives rise to offensive odours as were observed by Mr Spring in paragraph 54 of his Affidavit. Septic grey water provides conditions for the rapid multiplication of micro-organisms, 10-100 times in the first 24-48 hours.
17 The presence of a laundry tub in the amenities area as set out in paragraph 51 of Mr Spring's Affidavit indicates the potential for the system to receive faecal matter from washing underwear or nappies or cleaning clothing soiled by vomit. Accordingly there is a significantly high risk that the grey water contains human pathogens such as human gastro intestinal organisms, which might potentially include bacteria, viruses and protozoans. In addition chemicals, soap, detergent and other material may have been washed from clothing. Examples of pathogens that could be present in the grey water include viruses such as Hepatitis A and protozoans such a Giardia and Cryptosporidium all of which are capable of causing gastroenteritis particularly in children.
18 Secondly there are further significant dangers to the health of users of the public road where the waste water is also surcharging. Allowing the disposal of grey water by an unauthorised trench to an absorption pit surcharging onto a public road is tantamount to the throwing of slops into public roads as occurred in the nineteenth century. In addition to the foul odour produced, the risk to public health arises if persons walk through the affected area and bring the material into premises on their shoes. There is a potential risk to workers having to access services on the public road. There is a risk to children who may play in the vicinity and come into contact with the waste water via their feet or hands.
19 The third significant risk from these failing on site sewage management facilities is to the environment. Grey water carries suspended solids and organic material as well as plant nutrients and potentially pathogens. These materials are capable of changing the nature of receiving waters. The absorption pits at this site are approximately 1.5 metres deep. As such, they are below the root zone where nitrogen can be removed by plants. Phosphorus removal by soil is rarely complete and the proximity of this site to Emigrant Creek is such that it is highly likely that these elements shall be washed by storm flow to the estuary. Breakdown of the organics results in an increased biochemical oxygen demand, which has the potential to lower the level of oxygen in the receiving waters. These processes are cumulative and I am extremely concerned because of the proximity of these failing on site sewage management systems to Emigrant Creek that is a tidal waterway forming part of the Richmond River Estuary where oyster growing occurs.
116 I accept the opinions of Mr Plumb as set out above.
The allegations against Mr Spring
117 Mr Spring and Ms Currie were required for cross-examination.