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[2026] NSWLEC 1074
General information, not legal advice.
Land and Environment Court (NSW)
2026-02-24
Porter C
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Holman v Northern Beaches Council [2026] NSWLEC 1074
Hearing dates: 12-13 November 2025
Date of orders: 24 February 2026
Decision date: 24 February 2026
Jurisdiction: Class 2
Before: Porter C
Decision: The Court orders that:
(1) The appeal is dismissed.
(2) Application no. WW01020 for approval under s 68 of the Local Government Act 1993 (NSW) at 16 Wyatt Avenue, Belrose is refused.
(3) The exhibits are returned except for Exs 1, 2, A and B.
Catchwords: LOCAL GOVERNMENT APPEAL — s 68 sewer application — characterisation of sewer system — is a s 68 application needed — emergency measures
Legislation Cited: Local Government Act 1993 (NSW) Pt B, ss 68, 75-113, 176
Sydney Water Act 1994 (NSW)
Local Government Regulation 2021 (NSW), ss 3, 26, 29, 33, 40, 41, 42
Category: Principal judgment
Parties: John Holman (Applicant)
Northern Beaches Council (Respondent)
Representation: Counsel:
C Holman (Agent) (Applicant)
J Ede (Solicitor) (Respondent)
Solicitors:
Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 2025/199444
Publication restriction: Nil
COMMISSIONER: This appeal is about a proposed sewer and whether the proposed design and emergency measures are adequate.
The Applicant, Mr J Holman has appealed pursuant to ss 105 and 176 of the Local Government Act 1993 (NSW) (LG Act) against the deemed refusal by Northern Beaches Council for a human waste water system (sewer system) at 16 Wyatt Avenue, Belrose. The application seeks approval for the activity pursuant to s 68 of the LG Act, though this aspect is in dispute.
The proposal seeks approval for the following:
Installation of a pump to sewer system including two storage tanks, dual grinder pumps and associated control gear.
Equipment summary being:
(a) 2 x 10,000 litre collection wells. (b) 2 x submersible sewage pumps. (c) 1 x dual pump sewage controller and associated limit switches. (d) Gate and backflow prevention vales. (e) Pipes for the pumps, including 180m of pipe to discharge into the Sydney Water sewer. (f) Standard garden water tap located in close proximity.
On the first day of the hearing during opening submissions, Mr J Holman sought leave for Mr C Holman to represent him as agent. For the reasons given by Mr J Holman, including health reasons and that Mr C Holman was studying law, I granted leave.
With consideration of the evidence and submissions, I find that the application requires a s 68 approval and is not supported by adequate information to manage emergency situations such as sewage spillage or system break down. The application is therefore refused.
DA2021/1039 was granted consent for the site for the demolition of existing structures and construction of a boarding house comprising two buildings containing 55 rooms, basement car parking and ancillary works.
Council’s Statement of Facts and Contentions in Reply (SOFAC Reply) (Ex 1) states that the following conditions from that consent are relevant:
Condition 6 – “The owner and/or operator of the on-site wastewater management system must have a current Local Government Act Section 68 ‘approval to operate’ at all times.”
Condition 7 – “The development must be carried out in compliance with all recommendations and requirements, excluding general advice, within the following: … Sydney Water – Sydney Water Referral Response – 24 August 2021”.
The subject site is known as 16 Wyatt Avenue, Belrose (Lot 2566 DP 752038). The site has a frontage to Wyatt Avenue of approximately 28.74m and depth of approximately 211.8m. The overall site has an area of 9,345m2 and slopes to the rear with various topography changes across the site.
At the time of the hearing, the site did not benefit from a sewer system. The Court was shown the existing septic system and location of the proposed sewer further to the rear of the site.
The Garigal National Park is located to the rear of the site, but does not directly adjoin the rear boundary.
At the hearing, the Applicant pressed the following matters from the Statement of Facts and Contentions (SOFAC) (Ex B):
An approval under Pt B, s 68 of the LG Act is not required as:
(a) Pursuant to s 68(2), the site is land within the area of operations of the Sydney Water Board under the Sydney Water Act 1994 (NSW), and (b) That the proposal does not seek to operate a system of sewage management as the works are excluded from the definition as being “any action relating to the discharge of sewage directly into a public sewer” (Div 4 Approvals relating to management of waste, s 42, of the Local Government Regulation 2021 (NSW) (LG Reg)). (c) That accreditation pursuant to s 40 of the LG Reg is not required as the proposal will service a premises occupied by more than 10 persons and will have an average daily flow exceeding 2,000 litres (on Mr J Holman’s contentions, 18,700 litres per day).
If an approval is required, that the Onsite Wastewater Management Guidelines prepared by the Office of Local Government dated April 2025 (2025 Guidelines) (Ex D) do not apply as the application was lodged in January 2025.
Ultimately, Mr C Holman submits that the application is supported by sufficient information to grant an approval.
At the hearing, Council pressed the following from its SOFAC Reply:
The proposal is not for ‘sewerage work’ or a private drain or sewer that will connect with a public sewer or drain within the respective meanings of Items 4 and 6, Pt B of s 68 of the LG Act.
The proposal is for an approval to install a human waste storage facility pursuant to Item 5, Pt C of s 68 of the LG Act.
The 2025 Guidelines do not apply, but can be utilised as a guidance for an appropriate framework for the assessment of waste water systems.
The location of the sewer system and its holding wells are located adjacent to a proposed on-site stormwater detention system (OSD) and a creek that runs through the site and towards the Garigal National Park. A surcharge of sewage into either the OSD, the creek or Garigal National Park will adversely impact on and not protect the environment, public health and safety.
The proposal does not incorporate any stormwater diversion measures to ensure water does not enter into the sewer system. Ingress of water will impact the capacity of the system and can lead to surcharge of sewerage to sensitive areas previously detailed.
The proposal does not incorporate any bunding or a retention/holding pond to physically capture any surcharge of sewage and return it to the sewer system.
The proposal does not incorporate measures to manage an emergency situation, including surcharge of sewerage. The application should be fitted with a T junction and a camlock fitting.
The emergency response plan in Engineering Report prepared by Mr J Holman dated 6 May 2025 (Engineering Report) does not detail an appropriate emergency response in the event of a breakdown or interference with the system pursuant to s 26(7) of the LG Reg.
Council agreed that accreditation was not required and therefore ss 40 and 41 of the LG Reg do not apply.
The following legislation and guidelines are relevant to the proposal.
Section 68(1) of the LG Act details ‘activities’ that require approval from Council (or the Court on appeal) in the table. Relevantly:
Table
Approvals
…
Part B Water supply, sewerage and stormwater drainage work
…
4 Carry out sewerage work
…
6 Connect a private drain or sewer with a public drain or sewer under the control of a council or with a drain or sewer which connects with such a public drain or sewer
Part C Management of waste
…
5 Install, construct or alter a waste treatment device or a human waste storage facility or a drain connected to any such device or facility
68 What activities, generally, require the approval of the council?
…
(2) This section does not apply to the carrying out of an activity specified in Part B of the following Table—
(a) on land within the area of operations of the Sydney Water Board under the Sydney Water Act 1994, or
(b) on land within the area of operations of the Hunter Water Board under the Hunter Water Act 1991.
(3) This section does not apply to the carrying out of an activity specified in item 1, 2, 3, 4 or 6 of Part B of the following Table on land within the area of operations of a water supply authority constituted under the Water Management Act 2000.
76 What may an application relate to?
The application may relate to—
• the whole or part of an activity
…
81 What matters must accompany an application?
An application must be accompanied by such matters as may be prescribed by the regulations and such matters specified by the council as may be necessary to provide sufficient information to enable the council to determine the application.
…
89 Matters for consideration
(1) In determining an application, the council—
(a) must not approve the application if the activity or the carrying out of the activity for which approval is sought would not comply with the requirements of any relevant regulation, and
(b) must take into consideration any criteria in a local policy adopted under Part 3 by the council which are relevant to the subject-matter of the application, and
(c) must take into consideration the principles of ecologically sustainable development.
(2) If no requirements are prescribed for the purposes of subsection (1)(a), and no criteria are adopted for the purposes of subsection (1)(b), the council in determining an application—
(a) is to take into consideration, in addition to the principles of ecologically sustainable development, all matters relevant to the application, and
(b) is to seek to give effect to the applicant’s objectives to the extent to which they are compatible with the public interest.
(3) Without limiting subsection (2), in considering the public interest the matters the council is to consider include—
(a) protection of the environment, and
(b) protection of public health, safety and convenience, and
(c) any items of cultural and heritage significance which might be affected.
94 Determination of application
(1) The council may determine an application—
(a) by granting approval to the application, either unconditionally or subject to conditions, or
(b) by refusing approval.
human waste storage facility means a device for holding or disposing of human waste, including a cesspit, septic tank, septic closet, water closet, chemical closet, humus closet and combustion closet.
There is no definition of waste treatment device.
The definitions in s 3 of the LG Reg provide that a sewage management facility means:
(a) a human waste storage facility, or
(b) a waste treatment device intended to process sewage,
and includes a drain connected to such a facility or device.
26 Matters to accompany applications for approval to install or construct sewage management facilities
(1) An application for approval to install or construct a sewage management facility on any premises must be accompanied by the documents specified in this section.
(2) Plan The application must be accompanied by a plan, to scale, showing the location of—
(a) the sewage management facility proposed 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 sewage management facility or related effluent application areas, and
(d) any related drainage lines or pipework (whether natural or constructed).
(3) Specifications The application must be accompanied by full specifications of the sewage management facility proposed to be installed or constructed on the premises concerned.
(4) Site assessment The application must be accompanied by details of the climate, geology, hydrogeology, topography, soil composition and vegetation of any related effluent application areas together with an assessment of the site in the light of those details.
(5) 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 sewage management facility.
(6) Operation and maintenance The application must be accompanied by details of—
(a) the operation and maintenance requirements for the proposed sewage management facility, 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.
(7) This section does not apply to an application for approval to install or construct a sewage management facility on any premises if the applicant declares in the application that the facility will remain on the premises for no more than 12 months.
Note.
The information that is to accompany such applications (and applications for approval to alter a sewage management facility) is to be determined by the council in each particular case. Section 81 of the Act provides that an application for an approval under Part 1 of Chapter 7 of that Act (in which category such applications fall) must be accompanied by “such matters as may be prescribed by the regulations and such matters specified by the council as may be necessary to provide sufficient information to enable the council to determine the application”.
…
29 Matters to be taken into consideration in determining applications for approval to install, construct or alter sewage management facilities
(1) In determining an application for approval to install, construct or alter a sewage management facility, the council must take into consideration the matters specified in this section.
(2) Environment and health protection matters The council must consider whether the proposed sewage management facility (or the proposed sewage management facility as altered) and any related effluent application area will make appropriate provision for the following—
(a) preventing the spread of disease by micro-organisms,
(b) preventing the spread of foul odours,
(c) preventing contamination of water,
(d) preventing degradation of soil and vegetation,
(e) discouraging insects and vermin,
(f) ensuring that persons do not come into contact with untreated sewage or effluent (whether treated or not) in their ordinary activities on the premises concerned,
(g) the re-use of resources (including nutrients, organic matter and water),
(h) the minimisation of any adverse impacts on the amenity of the land on which it is installed or constructed and other land in the vicinity of that land.
(3) Guidelines and directions The council must consider any matter specified in guidelines or directions issued by the Secretary in relation to the matters referred to in subsection (2).
30 Standards to be met for approval
The council must not grant an application for an approval to install, construct or alter a waste treatment device or sewage management facility unless it is satisfied that the activity as proposed to be carried out will comply with any applicable standards established by this Regulation or by or under the Act.
…
Subdivision 3 Conditions of approvals
31 Compliance with standards
…
(2) It is a condition of an approval referred to in item 5 of Part C of the Table to section 68 of the Act (Install, construct or alter a waste treatment device or a human waste storage facility or a drain connected to any such device or facility) that—
(a) the activity approved, and
(b) any building or work associated or carried out in connection with the activity,
complies with any applicable standards established by this Regulation or by or under the Act.
…
33 Waste treatment devices
(1) It is a condition of an approval to install, construct or alter a mechanical device that treats waste by compaction, shredding or other means that this section is complied with.
(2) An occupier of premises on which waste is deposited must comply with any directions given by the council from time to time as to the use of the device.
(3) The waste treatment device and any part of the premises on which it is situated that is used in connection with the device must be maintained in a sanitary condition.
The first key issue is if the proposal needs an approval for the proposed activity.
The Applicant submits that the relevant items in Pt B do not apply pursuant to s 68(2) and (3) of the LG Act. As the site is land within the operations of Sydney Water under the Sydney Water Act 1994 (NSW), Pt B does not apply.
Mr C Holman submits that the proposal is best described with reference to the 2025 Guidelines, as a total off-site waste management system. This is defined as the “management of untreated domestic wastewater in a centralised sewerage system. Includes sewage ejection pump stations (SEPS).” Meaning that the application is not for a sewage management facility, as all management is undertaken off site. The proposal is simply a pump to sewer system.
Mr Ede submits that the proposed activity is captured by Pt C under s 68 of the LG Act. The proposal includes the connection to an existing sewer that is not under the control of Council but is a Sydney Water asset. This is part of the final stage of the proposed activity. The activity, properly understood, includes storage tanks to receive and store effluent consistent with the definition of human waste facility under the LG Act. The proposed activity includes the treatment of that effluent by maceration through grinder pumps. All of these activities fall within the definition of a human waste storage facility and could also be characterised as a waste treatment device (which is undefined).
Mr Ede submitted in response to the Applicant’s definition of the proposed activity with reference to the 2025 Guidelines, that they cannot be relied on to interpret the meaning of the words in the LG Act. The principles of statutory interpretation are to apply the ordinary meaning of a text as a starting point and to read the text in its context within the LG Act, not extrinsic materials such as guidelines. The LG Act contains a definition of a human waste storage facility. Section 33 of the LG Reg provides assistance in defining a waste treatment device.
I accept and adopt Mr Ede’s submissions that the proposal requires an activity approval pursuant s 68 as the proposal as properly described is characterised as an activity under Item 5, Pt C of the LG Act.
I firstly accept that following the ordinary principles of statutory interpretation, that the defined term of ‘human waste storage facility’ is as defined under the LG Act. The undefined term of ‘waste treatment device’ is to be given its ordinary meaning in the context of the LG Act and the LG Reg.
I find that the proposal is characterised as a human waste storage facility. The proposal includes a tank that holds human waste. That waste is macerated by the pump grinders and then pumped out to Sydney Water’s asset. These functions of the proposal are all consistent with the definition in the LG Act, which for ease I’ll reproduce below:
human waste storage facility means a device for holding or disposing of human waste, including a cesspit, septic tank, septic closet, water closet, chemical closet, humus closet and combustion closet.
Council raised in contentions 3 and 4 that adequate measures to manage an emergency were not proposed, including the surcharge of sewage.
Relevantly and repeated for convenience, s 26(6) of the LG Reg states:
26 Matters to accompany applications for approval to install or construct sewage management facilities
(1) An application for approval to install or construct a sewage management facility on any premises must be accompanied by the documents specified in this section.
…
(6) Operation and maintenance The application must be accompanied by details of—
(a) the operation and maintenance requirements for the proposed sewage management facility, 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.
The proposal falls under this section of ‘sewage management facilities’ as the definition under the LG Reg defines these as being for a ‘human waste storage facility’ or ‘waste treatment device’ intended to process sewage.
On the last day of the hearing during closing submissions, I did not accept a tender from the Applicant to address the Operation and Management (OM Plan) issue. This was on the basis that Council had raised the issues in its contentions, raised the issue again in correspondence several weeks before the hearing (Ex 8), Mr J Holman specifically responded to the issue (Ex E), Council invited the tender of the document on day one of the hearing and the Applicant declined on the morning of day 2 of the hearing. After being provided with numerous opportunities, the tender at such a late stage during closing submissions would have caused prejudice to the Council or disrupted the hearing.
The experts agreed that an OM Plan is required. The tanks are proposed to be installed in a rock shelf in very thin soil on a moderately steep ground upslope from the property boundary. The adjoining downslope property and drainage lines run down to Fireclay Gully (part of Garigal National Park).
The experts agreed that an OM Plan has not been provided. It was also agreed that the proposal was not accompanied by a site assessment. The possible environmental risks of spillage and runoff into the downstream drainage system were agreed to have not been addressed. The experts agreed that whilst a bunding solution downslope of the sewer system is not appropriate as it would potentially cause waterlogged ground and other issues, an OM Plan would need to be prepared and address the following:
Identification of the risks.
Measures demonstrating how the risks will be mitigated, including the potential use of temporary bunding during pump out occasions to ensure the capture of any spillage.
Details such as annual inspections, servicing, maintenance and reporting to Council.
Mr C Holman submits that the Engineering Report and other documents accompanying the proposal deal with the substantive matters that an OM Plan would deal with, including design, maintenance, installation of the system, operational instructions and emergency measures. The Applicant’s proposed conditions of consent supplement this material in order to address the matters raised by the experts. Section 26(6) of the LG Reg is satisfied by the application.
Mr Ede submits that s 26(1) of the LG Reg requires that applications for sewage management facilities must be accompanied by the information in that section. The relevant section in dispute is s 26(6) of the LG Reg, requiring an OM Plan. The Engineering Report does not contain details addressing any of the requirements in (a)-(c) of s 26(6).
Mr Ede submits that the consequences of the failure to provide the necessary information is articulated by the evidence of the experts in the JER. Both experts agreed that there is no identification of possible environmental risks of spillage from the system or any detail as to how these risks will be managed or mitigated. The location of the system on a rock face with very shallow soils, and the topography of the land, means that any effluent that is spilled from the facility will move downslope towards Fireclay Gully (Garigal National Park).
Section 89 of the LG Act requires that in determining an application, an activity must not be approved if it would not comply with the requirements of the regulation. Section 29 of the LG Reg requires consideration of environment and health protection matters. In the absence of an OM Plan, the Court does not have jurisdiction to approve the application and would not be able to consider the relevant matters under s 29 of the LG Reg.
I accept Mr Ede’s submissions that the application has not adequately addressed s 26(6) of the LG Reg, and therefore there is no power to grant the approval. These matters are jurisdictional or preconditions to granting an approval. Consideration of the environmental impacts from preconditions cannot be deferred to conditions of consent.
Consistent with the evidence of the experts, I find that the proposal has not been supported by adequate information that addresses emergency situations. As Mr C Holman submitted, there are some references to operational and emergency measures in the Engineering Report and throughout the proposal. However, I find that these are not to the level of detail that is required, and not address a failure situation or pump out situation. The Emergency Response Plan in the Engineering Report is limited, and details that in the event of a breakdown the system operates with two different pumps and pipes. The controller will indicate if the system has a failure and the sewer system will be supported by a generator when required.
There are no details or measures in the Engineering Report or elsewhere in the application that deal with other, reasonably foreseeable emergency situations, such as sewer spillage or complete failure of the system. I accept the evidence of the experts that the application does not include information that would ordinarily be compiled within an OM Plan, including the identification of risks and how these risks will be mitigated. The proposal is in proximity to an OSD and Garigal National Park, where risks to water and the environment need to be identified and mitigated. Further, consistent with the evidence, I could not find any references to ongoing servicing and maintenance. The Engineering Report details how servicing will occur, but provides no further information on frequency or ongoing maintenance and servicing arrangements of the proposal.
On this basis, I am not satisfied that s 26(6) of the LG Reg has been adequately addressed.
As there is no ability to grant an approval, I will not deal with the remaining issues in detail. To the extent that it might assist in a future application, the following is observed based on the evidence of the experts and submissions.
The experts agreed that a camlock fitting, whilst beneficial or preferred, was not necessary. I accept that a camlock fitting would provide a higher level of safety and reduce the risk of spillage than lifting the tank lid with associated higher risks of spillage. This issue on its own would not have warranted refusal, had a detailed operation and management plan that addressed all of the issues been provided. Acknowledging the limited times that the lid of the tank would need to be removed, I would anticipate that the additional risks of spillage without a camlock fitting would be addressed in the OM plan, with appropriate mitigation measures specified.
In relation to the tank size and operation of the system, I accept the evidence of the experts that the design and tank size of the system is appropriate, subject to the configuration measures stipulated in the JER. I am satisfied that the configuration measures stated in the JER allow the dual pump system to provide suitable support mechanisms in the event of failure or high water, and are required to meet the demands of up to 110 occupants.
To the extent that the stormwater diversion evidence and recommendations were resisted by the Applicant, I accept that the recommendations by the experts are appropriate to ensure that stormwater ingress is minimised, particularly having regard to the topography of the site and sensitive environmental constraints raised by Council. This evidence is generally consistent with the design specifications detailed on page 17 of the application.
The Court orders that:
The appeal is dismissed.
Application no. WW01020 for approval under s 68 of the Local Government Act 1993 (NSW) at 16 Wyatt Avenue, Belrose is refused.
The exhibits are returned except for Exs 1, 2, A and B.
**********
Holman
Northern Beaches Council [2026] NSWLEC 1074