Ballina Shire Council v Stubberfield and Anor

Ballina Shire Council v Jacobson & McMillan [2006] NSWLEC 135; CASES CITED: Cassaniti & Anor v City of Canada Bay Council [2002] NSWLEC 144; J & J O'Brien Pty Ltd v South Sydney City Council [2002] NSWCA 259

APPLICANT Mr D Wilson (barrister) SOLICITOR LEGAL REPRESENTATIVES: WJ Grace & Co FIRST RESPONDENT In person SECOND RESPONDENT No appearance

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

41284 of 2005 Ballina Shire Council v John Richard Stubberfield and Dorothy May Stubberfield

JUDGMENT 1 Her Honour: These are Class 4 proceedings brought by the Council to enforce an order issued under s 124 of the Local Government Act 1993 ("the LG Act") requiring the First Respondent to connect to the Council's sewerage system. The order was issued by the Council on 13 May 2004. 2 The premises owned by both the Respondents are located at Lot 4, Deposited Plan ("DP") 240895 Hogan St, Ballina, in an area known as the Clark/Hogan Streets Industrial Estate. The First Respondent, Mr Stubberfield, appeared on behalf of himself and his wife, the Second Respondent. The Respondents also own the adjoining Lot 3 in DP 240895, which lies to the southwest of Lot 4. 3 The Court undertook a view of the premises. The land is generally low lying. A reticulated sewerage system has been available to the industrial estate from 1994. The Council built the system using general revenue from ratepayers so that no head works contribution or building scheme costs were sought from the landowners of properties in the industrial estate. There is a connection point available to Lot 4 at the front of the property. All other premises in the area are connected to the sewer. To the southeast of the property is a Crown reserve known as Lot 452 DP 720427. Evidence 4 There are two tenants on Lot 4, East Coast Aluminium and Betta Hire. The existing sewerage management facility ("SMF") on Lot 4 is at the rear of the East Coast Aluminium building. An absorption trench has been dug to connect a toilet in the Betta Hire building on Lot 4 to the SMF on Lot 4. 5 There is also a more recent drainage trench on Lot 4 built by the First Respondent. This continues in a south-easterly direction, ending on Lot 452, the Crown reserve. The drainage trench is roughly parallel to the absorption trench except for a "dog-leg" part of the trench, which runs across the absorption trench. There is a black poly-pipe in part of the drainage trench on Lot 4. 6 The Council relied on five affidavits of its officers in evidence. These were the two affidavits of Gavin Spring (onsite sewage management officer), sworn 19 October 2005, and 21 March 2006, two affidavits of Graham Plumb (environmental health officer), sworn 7 November 2005 and 21 March 2006, and an affidavit of Maxwell Beecher (surveyor's assistant), sworn 6 December 2005. Two affidavits responded to the claims made by the First Respondent in his affidavits. Two of the Council's officers, Gavin Spring and Graham Plumb, also gave oral evidence.

7 The First Respondent relied on three affidavits. These were all sworn by him and were dated 20 December 2005, 9 February 2006, and 29 April 2006. The content of these affidavits is expanded on below. 8 The affidavit, sworn 19 October 2005, of Gavin Spring, the onsite sewage management officer of the Council, sets out the history of the matter from the Council's perspective, a short chronology of which follows: (i) The first inspection of Lot 4 by Mr Spring took place on 10 June 2003 when he saw the SMF was discharging what he referred to as "pools of foul water" into an open trench. (ii) On 17 June 2003 a letter from the Council was sent to the First Respondent requesting that he connect to the sewer line as the SMF was failing. (iii) A notice of proposed order was issued on 11 July 2003 to the First Respondent. (iv) On 15 October 2003, a s 124 order requiring the First Respondent to connect both Lots 3 and 4 to the sewer was issued and sent to him. (v) Following discovery by Council that there was no record of the First Respondent having received the notice of proposed order dated 11 July 2003, the previous order dated 15 October 2003 was withdrawn and a new notice of proposed order was sent to him on 1 April 2004. The s 124 order the subject of these proceedings was then issued on 13 May 2004. (vi) Further inspections of Lot 4 were undertaken on: (a) 31 August 2004; Mr Spring noted that the overflow relief gully had recently surcharged effluent. He observed deposits of toilet paper on the path around the amenities area. The level of effluent in the SMF was very high, indicating a failing tank. (b) 19 October 2004; it was observed that the area around the absorption trench was boggy. Mr Spring observed a combination of rainwater and effluent sitting on the surface of the ground. An effluent odour was noted. (c) 15 November 2004; it was noted that the corrugated iron previously covering the effluent in the open trench was no longer visible. (d) 8 April 2005; two samples of the overflow of water and effluent surcharge was taken. One sample taken was of liquid pooling from the outside of the SMF, and the other was from the top of the absorption tank. Test results on these samples later showed the substances, which were taken from the area, consisted of faecal coliforms at a level above normal standards, creating a risk to public health and the environment. (e) 29 April 2005; this site visit confirmed that the property was not connected to the Council's town sewerage system (f) 5 August 2005; a dye test was performed after the observation of toilet paper in the vicinity of the SMF, indicating a failure of the system. Fluorescent dye was placed into the outlet pipe of the SMF via the vent cover. The basin tap in the toilet amenities block adjacent to the SMF was turned on and allowed to run for approximately 15 minutes. According to Mr Spring's affidavit, after a minute or two he observed the green fluorescent dye coming to the surface of the western end of the trench, closest to the SMF, through the blue metal. Dye also emanated from the eastern end of the trench. Mr Spring states that he noticed a very strong odour of effluent at the time. (g) 8 August 2005; samples of effluent were again taken from the outlet of the SMF and at the point of discharge of the black poly-pipe onto the public reserve. Test results on these samples showed a high presence of faecal coliforms, confirming that sewage was surfacing in the vicinity of the SMF and discharging into the public reserve; and (h) 13 August 2005; photographs of the site (attached to Mr Spring's affidavit of 19 October 2005) were taken of discharge from the subject property into the drain on the public reserve. It was also observed that toilet paper was discharging from the black poly-pipe into the drain on the public reserve. 9 In addition, numerous other visits are recorded in Mr Spring's further affidavit, sworn 21 March 2006. These included inspections of the site on: (i) 13 October 2005; Mr Spring stated that he again observed that the gully in front of the toilet block had recently filled with liquid and the remains of toilet paper, and that faecal matter were present on the footpath outside the amenities block. He also noticed an odour from the SMF, amenities block and black poly-pipe trench. Mr Spring then spread lime over the affected area to sanitise and deodorise the surcharging effluent. (ii) 29 October 2005; Mr Spring noticed effluent discharging from the poly-pipe laid by the First Respondent onto the public reserve. A strong foul odour was also noticed. Again, lime was spread around the area where the effluent was discharging. (iii) 21 November 2005; the same observations were made by Mr Spring as were made on 13 October 2005. He again spread lime around the premises. (iv) 2 December 2005; lime was again spread around the area by Mr Spring. Photographs of the site were taken by him (copies of which are attached to his affidavit sworn 21 March 2006). Around this time, Mr Spring stated that he began making arrangements for the SMF to be pumped out, to minimise the health risk to the public. (v) 7 December 2005; again it was observed that effluent from the premises was continuing to surcharge into the public reserve. On this date, Mr Spring also stated that he sent a letter to the First Respondent advising him of the Council's intention to arrange for the pumping out of the SMF. (vi) 13 December 2005; Mr Spring again observed effluent and arranged for the SMF to be pumped out. Whilst this occurred he observed faecal matter surcharge and noticed an odour. (vii) 16 December 2005; the inspection of the premises revealed the SMF was full and the level of effluent was above the outlet pipe of the tank. (viii) 19 December 2005; similar circumstances existed to those observed on 13 December 2005 and the SMF was again pumped out. 10 The affidavit of Mr Spring sworn 21 March 2006 states that after his inspection on 19 December 2005, and the observations made at that time that the SMF was full, and with the level of effluent above the tank's outlet pipe, he decided to arrange for Northern Septic Grease and Oil to attend the premises and pump out the SMF every three days. 11 On 31 August 2005 a Clean Up Notice was issued to the First Respondent under s 91 of the Protection of the Environment Operations Act 1997 ("the POEO Act"), requiring work be done on the SMF.

12 The First Respondent does not contest most of the specific matters concerning the inspections of the Council officers. In his three affidavits dated 20 December 2005, 9 February 2006 and 29 April 2006, the First Respondent sets out the facts and submissions on which he relies, which deal respectively with: (i) why both the First Respondent's lots (Lot 3 and Lot 4) should be able to be connected to the sewer via one joint connection only, (ii) alleged illegal connection of Betta Hire's toilet to the SMF on Lot 4 because the First Respondent did not consent to this; (iii) the drainage trench built by the First Respondent on Lot 4, (iv) objections to some of the evidence given by Mr Spring of the Council, (v) the odour on Lot 4 from the pumping out of the portable toilets by Betta Hire on certain dates, (vi) concern about the decision to pump out the SMF on Lot 4 every three days by the Council, and (vii) the Council's alleged negligence in relation to the monitoring of substances entering the First Respondent's SMF.

13 In his affidavit of 20 December 2005, the First Respondent objected to the separate connection of Lots 3 and 4 to the Council's sewerage system because the two adjoining blocks are in the same ownership and used for the same purpose, namely, industrial sheds. The First Respondent stated that there was no reasonable explanation given to him by the Council as to why the one SMF could not service both lots concurrently. The First Respondent outlined numerous reasons, including his wife's illness and issues relating to capital gains tax, as to why he could not easily consolidate the two lots of land. He also disputed the application of the relevant local government regulation.

14 The First Respondent also argued in this affidavit that the Council had been negligent, in that it allowed the connection to the SMF on Lot 4 of a toilet in a tenant's property (Betta Hire) also on Lot 4 in 1997, without his consent. In doing so, an area of land on Lot 4 was filled to a height approximately 300mm above the original land level, so that the land was graded back towards the SMF. This meant that the rainwater flow was reversed, so that instead of water draining to the channel at the rear of Lot 4, it ran back towards the SMF, where it remained trapped and thus flooded the area around the tank. The First Respondent argued that it could be presumed that a licensed plumber would have undertaken this work on behalf of the Council, and that the problems with the SMF which have arisen as a result, are evidence of the Council's negligence. The First Respondent argued that connection to the Council's sewerage system would not alleviate the consequences of this trapped water.

15 In his affidavit of 20 December 2005, the First Respondent disputed some of the matters in Mr Spring's affidavit of 19 October 2005. He admitted that he built a drainage trench on Lot 4. He denied the trench was connected to the SMF outflow or drainage trench in July 2005 to alleviate the rainwater ponding problems. He stated that his tenant, East Coast Aluminium, has never complained of an odour from the SMF on Lot 4. He stated that Mr Spring's dye tests were pointless since it was only natural that the dye would drain into the public drain. Finally, he disputed Mr Spring's observations of toilet paper discharging from the drainage trench, arguing that it is impossible for toilet paper to enter the poly-pipe trench since it is not connected to the SMF outlet. The First Respondent alleged that Mr Spring deliberately placed the toilet paper there himself to assist the Council's case in these proceedings.

16 In his affidavit of 9 February 2006, the First Respondent stated that from 21-23 December 2005 he became aware of an odour on the subject site. He argued that the odour emanating from the site was due to the pumping out of the portable toilets by Betta Hire, and not the SMF on Lot 4. Letters attached to the affidavit of the First Respondent show that he wrote to the Council, asking it to explain why an illegal connection was approved by the Council to the existing SMF on Lot 4 by Betta Hire. Condition 9 of the development consent granted to Betta Hire in 1997 stated "the connection of Council's reticulated water and sewerage systems to the new development shall be undertaken at the applicant's expense in accordance with Council's current subdivision code". It appears that no application was made by Betta Hire under s 68 of the LG Act in relation to connection to the Council's sewer. The Council's affidavit evidence in reply suggests that the relevant Council officer at the time may have mistakenly believed the premises were connected to the Council's sewer.

17 In his affidavit of 29 April 2006, the First Respondent alleged that the decision of the Council to pump out the SMF every three days was not necessary and was vexatious. He also states that he noticed a blue liquid in the bottom of the SMF and that a Council officer asked him if he had a tenant which discharged the contents of a portable toilet into the SMF. He annexed a letter from the Council to Betta Hire, dated 18 April 2006, as evidence of the Council's knowledge of Betta Hire emptying its trade waste on Lot 4 illegally. He alleged Council had been negligent in allowing this to occur when regular monitoring of the SMF by the Council should have alerted the Council to this activity at an earlier date.

18 The letter dated 18 April 2006 suggests the Council considers there is a problem with the trade waste disposal of Betta Hire. The letter states the Council's view that condition 9 of the development consent required connection to the Council's sewer. It was not intended that there be connection to sewerage facilities that were already present elsewhere on Lot 4. The letter states the trade waste approval granted to Betta Hire had expired and did not give approval for Betta Hire's trade waste to be disposed of into an onsite SMF. While not stated specifically in the letter, the implication is that some trade waste from Betta Hire is being disposed of in the existing SMF on Lot 4. 19 In the oral evidence of Mr Plumb, Council officer, it was made clear that Betta Hire has two types of trade waste. The waste from the portable toilets must be disposed of by pump-out to a truck for disposal elsewhere which as far as the Council is aware is what has been happening. The trade waste resulting from the washing down of hire equipment can, if properly treated through an oil separator, be disposed of through an onsite SMF to the Council's sewer.

20 The affidavit of Mr Spring, sworn 21 March 2006, attaches a copy of a development application dated 23 January 1997, made by Mr St Clair of Betta Hire under s 77(3) of the Environmental Planning and Assessment Act 1979 (EP&A Act) in regard to Lot 4, for the operation of an equipment rental business and the construction of a shed and yard. This development application is signed by the First and Second Respondents, giving their consent as the landowners to the making of it. A building application signed by Mr St Clair on 12 February 1997 for an industrial steel shed attached a "written consent for applicant to sign building application", signed by the First Respondent. Legislative requirements Power to issue order 21 Section 124 of the LG Act states that: A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table. a) Orders requiring the preservation of healthy conditions

Column 1 Column 2 Column 3 To do what? In what circumstances? To whom? … 24 To connect premises with a sewerage system by a specified date The premises are situated within 75 metres of a sewer of the council Owner or occupier of premises

Notice requirements 22 Section 132 of the LG Act requires notice to be given by a Council prior to any order being issued under s 124 of the EP&A Act. Section 132(1) of the LG Act states: (1)Before giving an order, a council must give notice to the person to whom the order is proposed to be given of its intention to give the order, the terms of the proposed order and the period proposed to be specified as the period within which the order is to be complied with. (2)The council's notice must also indicate that the person to whom the order is proposed to be given may make representations to the council as to why the order should not be given or as to the terms of or period for compliance with the order. (3)The notice may provide that the representations are to be made to the council or a specified committee of the council on a specified meeting date or to a specified councillor or employee of the council on or before a specified date being, in either case, a date that is reasonable in the circumstances of the case. Power to enforce order 23 Section 672 of the LG Act states: (a) "a breach of this Act" means: (i) a contravention of or failure to comply with this Act, (ii) a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act, and (b) "this Act" includes: (i) an approval under Part 1 of Chapter 7, and (ii) an order under Part 2 of Chapter 7, and (iii) the regulations. 24 Section 673 of the LG Act deals with breaches of the Act and states: ( 1) The Minister, the Director-General or a council may bring proceedings in the Land and Environment Court or such other court as may be specified in this Act for the purpose of the proceedings for an order to remedy or restrain a breach of this Act.

(2) Subsection (1) does not apply in relation to an alleged contravention of Part 2 (Duties of disclosure) of Chapter 14 (Honesty and disclosure of interests).

25 Section 676 deals with the powers of the Court to make orders in relation to breaches of the LG Act and states: (1) If the Land and Environment Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. (2) If a breach of this Act would not have been committed but for the failure to obtain an approval under Part 1 of Chapter 7, the Court on application being made by the defendant, may: (a) adjourn the proceedings to enable an application to be made under Part 1 of Chapter 7 to obtain that approval, and (b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned. (3) The functions of the Court under this section are in addition to and not in derogation of any other functions of the Court. 26 In the Dictionary to the LG Act "premises" means any of the following: (a) a building of any description or any part of it and the appurtenances to it, (b) land, whether built on or not, … 27 There is a definition of "house drain" in cl 3 of the Local Government (General) Regulation 2005 ("the Regulation"). It states: house drain means that part of the sewerage service that conveys (or is intended to convey) the discharges from soil pipes and waste pipes on premises.

28 Clause 162 of the Regulation states: (1) The owner of premises connected to the council's sewerage system must ensure: (a) that any house drain on the premises is kept separate from that of all other premises, and (b) that the only fittings and fixtures permitted to discharge into the house drain are those located on the premises. (2) The owner of premises on which a house drain is or is to be connected to the council's sewerage system must ensure that the drain is laid within the boundary of the premises until it: (a) reaches that system or the boundary nearest to that system, or (b) emerges into a public place. On 1 September 2005, this Regulation replaced the Local Government (Water Services) Regulation 1999, cl 31 of which had been in identical terms.

Council's submissions 29 The Council submitted that the existing SMF on Lot 4 is functioning inadequately for the purposes of waste management. This is the reason it issued a s 124 order under the LG Act for connection to the Council's sewerage system. Connecting to this system would prevent run-off into the nearby public reserve, road and creek. Even if other material such as trade waste were not entering the SMF, the Council submitted that the current system would still be inadequate because such SMFs have limited lifespans and the one the subject of these proceedings is now quite old. The absorption trench to which it is connected is also old and not functioning properly. The dye tests showed that the dye ran through both the absorption trench and the dog-leg drainage trench and, therefore, that discharge from the SMF was occurring.

30 The Council submitted that it had power to order this connection under cl 24 of s 124 of the LG Act, since the subject land is within 75m of a Council sewer. Furthermore, the order issued was proper and in accordance with the requirements of orders set out in J & J O'Brien Pty Ltd v South Sydney City Council [2002] NSWCA 259, and Cassaniti & Anor v City of Canada Bay Council [2002] NSWLEC 144. Since the First Respondent has not complied with this order, the Council seeks, under s 673 of the LG Act, to have the Court remedy this breach.

31 The Council also submitted that although the property the subject of these proceedings is on industrial land, cl 162 of the Regulation applies since "house drain" is not limited to residential premises only. Under this clause the First Respondent must connect Lot 4 and Lot 3 separately to the Council's sewer as drains for separate premises must be kept separate. There is no evidence of the First Respondent seeking Council permission to consolidate the two blocks of land. A joint connection to the sewer cannot, under the Regulations, service both lots concurrently. First Respondent's submissions 32 As identified at par 12 the First Respondent disputes a number of matters relied on by the Council. He argued that the existing system is adequate and that there were no problems with the current system prior to 2003. He claims the current problem with the system overflowing is caused by the illegal discharge of trade waste by Betta Hire into that system. Given the small number of employees working on the site and using the facilities, there is no other explanation for the SMF's rapid filling every couple of days. Since the current system is effective if used properly, the First Respondent argued that it should not have to connect Lot 4 to the Council's sewerage system. 33 The First Respondent argued that the Council was negligent and caused the problem by not correctly supervising Betta Hire's shed being constructed to ensure compliance with condition 9 of its development consent (carried over into condition 1 of the building consent), requiring connection to the Council's sewer for the disposal of trade waste. 34 The First Respondent further submitted that a change in the drainage fall of the land lead to the likelihood of the sewerage system overflowing which problem was caused when the Betta Hire toilet was connected to the SMF. 35 In addition, the First Respondent alleged fraud on the part of Mr Spring, Council officer, whom he said "planted" evidence, which was then relied on by the Council in these proceedings. 36 The First Respondent submitted that the dye test was unnecessary and told the Court he wished to consolidate the titles of Lot 3 and Lot 4 and connect Lot 3 to the Council's sewerage system and then connect Lot 4 to the SMF on Lot 3 in about a year's time, due to current leasing arrangements. Finding 37 The Council has power to enforce orders in this Court under s 672 and s 673 of the LG Act where those orders have not been complied with, as is clear on reading those sections and as recently confirmed by Jagot J in Ballina Shire Council v Jacobson & McMillan [2006] NSWLEC 135. In that case Ballina Shire Council sought orders against the First Respondent restraining the discharge of domestic wastewater from the his premises and requiring the carrying out of certain works to plumbing and drainage facilities servicing those structures. The council in that case had also served a s 124 order on the First Respondent relating to the management of wastewater on the premises. Jagot J held at [10]-[11] that: The Council was entitled to serve on the respondents the order under s 124 of the Local Government Act 1993…because waste was present or generated on the premises and was not being dealt with satisfactorily…The respondents had not carried out the works required to comply with the s 124 order. Failure to comply with all of the requirements of the s 124 order was a breach of the Local Government Act 1993…enlivening the jurisdiction of this Court (s 673 of the Local Government Act 1993…). 38 Adequate notice in the correct form was given as required by s 132(1) of the LG Act by the notice of intention to issue an order dated 1 April 2004.

39 The Applicants also relied on the Court of Appeal in O'Brien to argue the s 124 order issued to the First Respondent was valid as it adequately stated the reasons it was issued. O'Brien was an appeal from a decision in this Court dismissing an application for a declaration of invalidity of a demolition and compliance order issued by the respondent council. The applicant on appeal argued that the compliance order was invalid because no reasons were given in the order to support it. The Court of Appeal held unanimously at [47] that orders given by a council should be read as a whole. Even if reasons for the compliance order were not enunciated by the council, when the orders are read as a whole, the reasons for the exercise of the council's discretions become clear. 40 The Council provided lengthy reasons in the s 124 order dated 13 May 2004 as to why the First Respondent must connect to the Council's sewerage system. The septic drainage absorption area was observed to be defective to the extent that there is a potential hazard to public health and the surrounding environment. There was found to be a physical risk to persons on the property because of the wet, muddy nature of the site. The Council had received petitions from landholders in the area requesting them to construct a sewerage system, and had done so expecting that landholders would connect to the sewer within 10 years. All other occupied premises in the area have now been connected to the system. The Council has obligations to ensure the proper supervision of onsite sewerage management. The placement of a system in the subject site by the Council is consistent with this obligation. Further, the area is subject to a high water table and is within 50m of an environmentally sensitive area. Finally, connection to the system is required because it is consistent with the principles of ecologically sustainable development. The order is clearly valid, applying O'Brien. 41 The 75m requirement under Ch 7, Pt 2, s 124, cl 24 of the LG Act is clearly met, given the location of the sewer in relation to Lot 4. There is extensive evidence relied on by the Council as set out at par 8 and 10 to demonstrate that there is a problem with the operation of the SMF on Lot 4. There is clear evidence that the s 124 order dated 13 May 2004 has not been complied with and that there is a potential risk to public health if the matter is not rectified given the possible leakage of the contents of the SMF onto Lot 4 and beyond. 42 The matters raised by the First Respondent to argue that the Court should not order the connection of Lot 4 to the Council's sewer are not persuasive reasons why I should not make the order sought by the Council as I will now outline. (i) Effect of cl 162 of Local Government (General) Regulation 2005 43 Lot 4 and Lot 3 are separate premises within the meaning of "premises" in the LG Act. Clause 162 specifically requires that house drains on premises be separately connected to the sewer. "House drain" is not restricted to residential premises only but clearly also applies to industrial property. That is clear from the definition of "house drain" in the Regulation as set out in par 27 which refers to premises generally. The First Respondent said that he wishes to combine the title of the two lots but cannot do so for about a year after which he plans to connect Lot 3 to the Council sewer and Lot 4 to Lot 3. I do not think postponing connection of Lot 4 to the Council's sewer for such a period is justifiable given the current difficulties with sewage disposal on the site. (ii) Drainage/absorption trenches 44 While the First Respondent maintained that there is no link between the drainage trench that he dug leading to the public reserve from both tenants' buildings, it is clear that the "dog-leg" part of that drain crosses over the absorption trench built from the Betta Hire building to the SMF on Lot 4. The evidence is that the absorption trench is not a sealed structure. The dye test undertaken by Mr Spring confirms that there is a physical link between the two trenches and the SMF, a clearly unsatisfactory state of affairs which has resulted in sewage leaving Lot 4 and entering the adjoining public reserve. 45 Mr Plumb stated in his affidavit that he was of the opinion that the black poly-pipe had been deliberately laid by the First Respondent for the purpose of conveying SMF effluent from the SMF to the nearest water course in order to bypass a defective absorption area. In his affidavit sworn 20 December 2005, the First Respondent denies this allegation. I accept his statement that he did not intend to connect the drainage trench to the SMF. The evidence clearly shows that there is nevertheless a physical connection. (iii) Fraud allegation 46 The First Respondent has raised a serious allegation in relation to the actions of Mr Spring, being that he fraudulently planted evidence relied on by the Council in these proceedings. It is clear from the numerous inspections undertaken by Mr Spring as set out in his affidavits and the dye test he conducted, that it was physically possible for material to overflow from the SMF into the drainage trench. Mr Spring denies the allegation made against him and would appear to have carried out his duties diligently as he should as a council officer. The affidavit of Graham Harvey Plumb, sworn 7 November 2005, supported Mr Spring's observations of smelling strong odours on the site. Mr Plumb states that on 5 August 2005 he was called to the site by Mr Spring, who informed him then that he had placed dye into the SMF and Mr Plumb also witnessed the results of this dye test, by observing the dye in the watercourse on the adjacent public reserve land. I do not consider there is any credible evidence against Mr Spring in relation to this allegation and consider it is unsubstantiated supposition on the part of the First Respondent.

(iv) Connection of Betta Hire toilet to SMF 47 The First Respondent alleged that the connection of the Betta Hire toilet to the SMF in 1997 was done without consent and was poorly supervised by the Council. The evidence does not enable me to come to any conclusive view on that issue. I do not make any finding here about whether the Council has acted negligently, as the First Respondent alleged, in relation to compliance with condition 9 of the development consent granted to Betta Hire. The First Respondent consented to the development application and the building as owner of the land. Even if there is a problem with the way the Council dealt with this matter in 1997 the current circumstances suggest that connection to the Council's sewer is necessary.

(v) Disposal of tenant's trade waste 48 On the available evidence I make no finding that any waste from the portable toilets of Betta Hire is disposed of in the SMF on Lot 4. The letter from the Council to Betta Hire dated 18 April 2006 in evidence (par 18) suggests that the disposal of trade waste from the washing down of equipment by Betta Hire has been directed to the SMF on Lot 4. 49 The Council's evidence is that some of the trade waste from Betta Hire may be able to go through the SMF on Lot 4 to the Council's sewer if properly treated and if the SMF is operating adequately. If there are trade waste disposal issues in relation to Betta Hire these will have to be worked out between the First Respondent, his tenant and the Council. The letter dated 18 April 2006 from the Council to Betta Hire states: … Continue negotiations with the property owner [the First Respondent] to facilitate as soon as practicable the connection of the facilities within the building subject of DA 1997/147 and BA 488/7 to Council's sewer. In this regard it is preferable that work to connect all of the facilities on the site be undertaken at the same time by the same licensed plumber and drainer. You should note that Council has also ordered the owner to connect facilities at Lot 4 to the sewer. … 50 I do not consider the resolution of trade waste disposal from Betta Hire is a reason to delay making the order sought by the Council but as stated in the Council's letter quoted above there should be discussion with the tenant about how connection to the Council's sewer is best achieved from Lot 4. (vi) Council decision to order pump-out of SMF 51 The First Respondent objected to the Council's decision to require the pumping out of the SMF on Lot 4 every few days. The evidence relied on by the Council supports its decision to undertake that course of conduct. 52 The parties agreed that the cost of connection to the sewer was in the range of $5,000 to $10,000. Apart from affidavit evidence that the First Respondent is a self-funded retiree who needs to maintain his retirement capital, no particular issue concerning lack of capacity to pay for the connection has been raised by him.

Time for compliance order 53 I asked the First Respondent how long he would need to comply with the order and he stated 60 days. Given that it is clearly necessary that there be discussion and hopefully agreement with the tenant Betta Hire on the most appropriate way to manage connection to the Council's sewer I will allow another month in addition to the 60 days, a total of 90 days. I will amend the order sought to reflect that time period as it appears reasonable. Costs 54 The Council has indicated that it wishes to seek its costs of the proceedings, which order the First Respondent opposes. The parties agreed that it would be preferable to do this by way of written submissions. I will therefore make orders for a timetable for that to occur as follows: 1. The Council is to make written submissions on costs 14 days from the date of judgment, being 30 June 2006. 2. The First Respondent is to make written submissions in response to the Council's cost submissions 21 days thereafter, being 21 July 2006.

Orders 55 The Court orders:

1. The First Respondent, at his own cost and expense, comply with the Order under s 124 of the Local Government Act 1993, made by the Council on 13 May 2004, within 90 days of the date of judgment 16 June 2006.
2. The Council is to make written submissions on costs 14 days from the date of judgment, being 30 June 2006.
3. The First Respondent is to make written submissions in response to the Council's costs submissions 21 days thereafter, being 21 July 2006.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.