Ballina Shire Council v Stubberfield and Anor

Ballina Shire Council v Stubberfield and Anor - [2006] NSWLEC 324 - NSWLEC 2006 case summary — Zoe

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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.

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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.

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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.

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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.

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(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.

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