Health Act (Sewerage Drainage and Underground Water Supply) Regulations 1959

The instrument operates through three primary regulatory concepts: prior local authority approval, construction and siting standards for wells intended for human consumption, and a prohibition on the proximate deposition of sewage or offensive matter to protect underground sources.

Prior approval is an ex ante gatekeeping mechanism, it requires a person to obtain the local authority’s approval of the position on the land where a well or disposal works is to be constructed, and to construct only in the approved location (reg 11). The approval is positional, not a retrospective licence to remedy non‑compliant works; the text is categorical, a person shall not construct or cause to be constructed unless prior approval has been obtained.

Construction standards are prescriptive and technical in nature. For a well to be used for human consumption the occupier must ensure the well is at least 30 metres from soak wells or other probable pollution sources, lined with impervious material to 1.8 metres depth and with at least 300 millimetres of lining above ground level, covered with a tight fitting cover allowing only pump access, and surrounded by a 600 millimetre impervious apron graded away from the well (reg 12(a)-(d)). The regulation therefore combines separation distances, containment through impermeable lining, access controls through covers, and surface drainage controls through aprons and grading.

The pollution‑prevention prohibition echoes the separation rule, and applies to depositions of sewage, offensive matter or any other substance likely to pollute underground sources which are used, intended, or likely to be used for human consumption; deposition must be at least 30 metres from such sources (reg 13). The wording includes both actual use and potential use, thereby extending the protective rule to water supplies that are not yet in service but are reasonably expected to be.

Enforcement is criminal and pecuniary. Regulations 11-13 are listed in the Table in reg 14(1) as offences, and reg 14(2) prescribes minimum and maximum monetary penalties varying by first, second or third and subsequent offences, and provides for a daily penalty for continuing offences.

The regulations are geographically delimited. They apply only in the districts set out in Schedule B (reg 2; Schedule B lists specified cities, towns and shires). The instrument contains no administrative detail on how local authorities should process approvals, no technical standards beyond the four conditions in reg 12, and no definitions for the terms used such as “occupier”, “local authority”, “soak well” or “probable source of pollution”.

Primary obligations fall on three actor categories named in the text: persons proposing to construct wells or disposal works, occupiers of premises who intend to use well water for human consumption, and any person who deposits sewage or offensive matter on land that could affect an underground water source.

Persons constructing or causing construction must secure prior approval from the local authority for the planned position of a well or disposal works (reg 11). The construct/propose verbs capture both a direct constructor and someone who causes construction through a contractor, agent, or owner commissioning works. Because the requirement is to obtain approval before construction, landowners and developers share risk if they begin works prior to approval.

Occupiers of premises are the class that the construction standards target for the use of water for human consumption (reg 12). The occupier, rather than the owner or builder, is the actor prohibited from using the well water unless the well complies with the enumerated conditions. The regulation therefore places ongoing compliance responsibility for water safety on whoever occupies the premises and uses the supply, regardless of who constructed the well.

Third parties who deposit sewage, offensive matter or other polluting substances are subject to the 30 metre prohibition where the deposition might affect a well or underground source used or likely to be used for human consumption (reg 13). This captures landholders, septic operators, or commercial activities disposing of effluent or waste on land.

Local authorities are the deciding bodies for prior approval (reg 11). The regulations do not specify how local authorities must exercise that approval power, what criteria they must apply beyond position on the land, or timeframes for decision making. The instrument does not specify which enforcement agency enforces the penalty regime; the penalties are expressed as criminal offences under the regulations (reg 14), so enforcement would ordinarily proceed through the local authority’s enforcement mechanisms or the prosecuting authorities empowered under the parent Act, but the regulations themselves do not create procedural enforcement rules.

Geographic scope confines affected persons to those operating within the local government districts listed in Schedule B (reg 2). Schedule B enumerates numerous cities, towns and shires across Western Australia; the spatial coverage therefore matters for compliance planning, and the regulations do not apply outside those districts.

Duties

• Prior positional approval: No person may construct or cause to be constructed a well, other underground water source, or works for disposal of offensive matter on any land without obtaining the prior approval of the local authority to the position on the land where the construction is to occur, and the construction must be carried out in that approved position (reg 11). The duty is an absolute pre‑construction obligation; there is no express provision for retrospective cure.

• Construction standards for human consumption: The occupier must not use the water of any well for human consumption unless the well satisfies four specified conditions: (a) minimum horizontal distance of 30 metres from any soak well or other probable source of pollution; (b) lined with impervious material to at least 1.8 metres below surface and lined up at least 300 millimetres above adjacent ground level; (c) covered with a tight‑fitting cover with no opening other than that essential for insertion of a pump; (d) area immediately adjacent covered with impervious material for at least 600 millimetres radius and graded with a fall away from the well (reg 12(a)-(d)).

• Prohibition on deposition proximal to wells: A person shall not deposit sewage or offensive matter, or any other substance likely to pollute or render unfit for human consumption the water in any well or underground source, used or likely to be used for human consumption, unless the deposition is situated not less than 30 metres from that well or source (reg 13).

Rights and gaps

• Right to seek local authority approval: The regulations implicitly provide the procedural right to an applicant to apply for and receive approval of a position, but they do not prescribe the process, grounds for refusal, or review mechanisms (reg 11). The text specifies only that approval must be obtained.

• Absence of technical certification obligations: The regulations do not require independent testing, certification, or professional sign off for lining materials, covers, or aprons; compliance is expressed in descriptive terms (impervious material, tight‑fitting cover) rather than by reference to technical standards.

• No express defence or exemption clauses: The regulations do not list exceptions, variances, or transitional arrangements for existing wells or works constructed prior to the regulations or prior to the grant of approval.

• Penalty structure: Offending is criminalised with graduated minimum penalties by repeat offence and a banded maximum, together with a banded daily penalty for continuing offences (reg 14(2)(a)-(b)). The scales set deterministic financial exposure for non‑compliance. The regulations do not, however, set out procedural details on how repeat offences are counted, over what period, or how continued non‑compliance is established.

• Geographic entitlement: A person outside the local government districts in Schedule B is not subject to these regulations, and the regulations do not create extraterritorial duties (reg 2 and Schedule B).

Offences and penally framework

The instrument designates contraventions of regulations 11, 12 and 13 as criminal offences by the Table in regulation 14(1). Regulation 14(2) prescribes the pecuniary penalties. For a person who commits one of these offences:

• The penalty amount is constrained to not more than $1 000 and not less than a specified minimum which depends on the ordinal number of the offence: for first offences the minimum is $100, for second offences $200, and for third or subsequent offences $500 (reg 14(2)(a)(i)-(iii)).

• If the offence is continuing, a daily penalty range applies, not more than $100 and not less than $50 (reg 14(2)(b)).

The structure prescribes both per‑event fines and ongoing daily penalties for continuing breaches, thereby creating financial incentives both to avoid initial breaches and to remove ongoing contraventions promptly.

Enforcement mechanics and discretion

The regulations themselves do not specify which authority enforces the offences, nor do they provide procedural mechanisms for prosecution, summary proceedings, notices, remedial orders, or seizure powers. The primary enforcement lever in the text is the criminal penalty. Because reg 11 requires approval of the “local authority” for siting, local authorities are the approval decision makers and plausibly the primary compliance monitors, but the regulations do not state explicit enforcement responsibilities for local authorities or timeframes for approval. The absence of prescribed enforcement processes leaves discretion over investigation, charge, and prosecution to the authorities empowered under the parent Health (Miscellaneous Provisions) Act 1911 and general prosecutorial frameworks, which are not set out in the instrument.

Counting and recurrence

The penalty schedule differentiates first, second and third or later offences, thereby creating increasing minimum exposure for repeat defaulting actors (reg 14(2)(a)). The regulations do not state the time window across which earlier offences are counted, nor do they provide an administrative process to determine whether an offence is a repetition, leaving those determinations to prosecutorial practice and court processes.

Limits and monetary quantum

Maximum single‑offence exposure is capped at $1 000 and daily continuing penalties at $100. The reprint notes show the instrument was consolidated as at 7 March 2003; the monetary amounts in reg 14 are as printed in the reprint and are not stated to be indexed in the regulations themselves. Any change to monetary penalties would therefore require instrument amendment or reliance on any statutory indexation mechanism external to the regulations.

Remedies beyond penalties

The text contains no express civil remedial powers such as statutory abatement notices, orders to repair or decommission, or powers to take remedial action and recover costs from the person responsible. Absent those provisions in the regulations, enforcement will rely on criminal prosecution, and potentially on other statutes or local government powers not set out here.

Enabling and reprint context

The instrument is framed as regulations made under the Health (Miscellaneous Provisions) Act 1911, it bears the short title Health Act (Underground Water Supply) Regulations 1959 and is reprinted under the Reprints Act 1984 as at 7 March 2003 (reg 1 note, compilation notes). The regulations thus operate as delegated legislation within the health legislative framework, and the parent Act governs the scope of the enabling power, enforcement mechanisms, and definitions that the regulations do not supply.

Local government references and subsequent statutory change

Schedule B lists specific local government districts to which the regulations apply (reg 2 and Schedule B). The compilation notes include a statutory reading instruction relevant to local government restructuring: under the Local Government Act 1995 Schedule 9.3 cl. 3(2), a reference to a district of a municipality under the Local Government Act 1960 may, when the context requires, be read as if amended to include or be a reference to a district of a local government under the Local Government Act 1995. The reprint notes confirm that this reference was changed under the Reprints Act 1984 s. 7(5)(a). The net effect is that the enumerated districts in Schedule B should be read so as to accommodate later local government restructures when the context requires (compilation note 3).

Scope vis à vis other health and land use laws

The regulations intersect functionally with any other statutory rules that control discharges, building approvals, environmental protection, septic systems, or land use. For example, requirements for sewage treatment, building approvals for pump installations, or environmental protection rules for land contamination may impose parallel or additional duties, even though the regulations do not cross‑reference them. The regulations do not displace other statutes; they add a discrete set of requirements focused on siting and construction standards for underground water supplies within the listed districts.

Amendment and repeals

The compilation table and notes record a history of insertions and amendments: regs 11-13 were inserted by Gazette 20 Mar 1963 p. 890; regs 12 and 13 were later amended by Gazette 3 May 1974 p. 1440; reg 14 was inserted on 23 Dec 1988 p. 4974. Schedule B was inserted and amended in 1962 (Gazette 31 Aug 1962 p. 2404‑5 and 8 Nov 1962 p. 3651). Those amendment entries show how the regulatory content evolved, but the instrument itself as reprinted does not expound on how it interacts with later Acts governing water, environment, or local government beyond the compilation note about reading references to districts under the Local Government Act 1995.

Administrative law interfaces

Because reg 11 vests an approval function in the local authority without specifying decision criteria or process, the exercise of that power will be subject to administrative law constraints arising from the enabling Act and general administrative law principles. The regulations do not specify appeal rights or review paths, so review mechanisms will depend on the parent Act and general judicial review avenues.

The reprint notes and Gazette entries provide a compact amendment history of the instrument through to the reprint date of 7 March 2003.

• Original instrument and early Gazettal: The instrument appears as regulations made in 1959 and published in various Gazette entries between 1959 and 1961 (compilation table entries). The exact original title is recorded as Sewerage and Drainage Fixtures and Fittings Regulations 1959 in the compilation table, with later citation changed to Health Act (Underground Water Supply) Regulations 1959 (note 4).

• Schedule B insertion and amendment: Schedule B, enumerating the health districts where the regulations apply, was inserted 31 August 1962 (Gazette 31 Aug 1962 p. 2404‑5), with an amendment recorded on 8 November 1962 (Gazette 8 Nov 1962 p. 3651).

• Regulation 1 amendments: The citation provision (reg 1) was amended by Gazette 20 March 1963 p. 890 and 30 July 1968 p. 2204.

• Insertions of regs 11-13: Regulations 11, 12 and 13 were inserted 20 March 1963 (Gazette 20 Mar 1963 p. 890). This date is the point at which the prior approval requirement and the well construction/usage standards were added to the instrument.

• Amendments to regs 12 and 13: Both reg 12 and reg 13 were amended by Gazette 3 May 1974 p. 1440. The reprint text shows the current wording reflecting those amendments; the reprint notes do not set out the pre‑1974 text, but record the amendment event.

• Insertion of reg 14: The offences and penalties provision was inserted as part of the Health (Offences and Penalties) Amendment Regulations (No. 2) 1988, Part 12, and gazetted 23 December 1988 p. 4970‑5, with the specific insertion entry at p. 4974. This is when the specified penalty structure for regs 11-13 appeared.

• Reprints: The instrument was reprinted under the Reprints Act 1984 and compiled as at 7 March 2003. The compilation table lists a series of Gazette notices and reprints from 1959 through 1965 and 1969 that collectively document the evolution of the instrument to the form reprinted in 2003.

Notes in the reprint also record that the municipal district of the City of Perth had been divided into new local government districts for practical reading of Schedule B at the date of the reprint. The compilation notes contain cross references to the Local Government Act 1995 reading rules for district references (compilation note 3).

The amendment history recorded in the reprint shows discrete additions and updates rather than continuous rolling technical standard updates; the key substantive additions were the insertion of the approval, construction and anti‑pollution provisions in the early 1960s, and the insertion of the current penalty regime in 1988.

The text of the regulations, together with the compilation and notes included in this reprint, do not record any litigation history. There are no cases, judicial decisions, or tribunal determinations listed or cited in the instrument, and the notes and compilation table do not mention disputes, precedents, or appeals arising under these regulations.

Because the instrument is a reprint of delegated health regulations, any litigation that has considered or interpreted these provisions would be recorded externally in court or tribunal reports, administrative rulings, or agency records. The reprint itself is silent on such matters, and does not supply case law, authorities or interpretive guidance. Practitioners seeking precedent or judicial interpretation must therefore search court and tribunal databases and local government enforcement records outside the text of the regulations.

The absence of litigation references in the reprint does not imply absence of disputes in practice; it only reflects that the instrument, as compiled and annotated here, does not include judicial content. For purposes of assessing legal risk and likely enforcement questions, one must consult external legal databases for any prosecutions, convictions, or judicial review decisions that address the application of regs 11-14 or of Schedule B’s geographic scope.

Geographic limitation: The regulations apply only within the local government districts listed in Schedule B (reg 2 and Schedule B). Although Schedule B lists an extensive set of cities, towns and shires, the instrument does not apply automatically statewide. A well constructed outside those districts is not regulated by these regulations, which matters for owners and occupiers who operate across district boundaries.

Prior approval is positional and pre‑construction: Regulation 11 requires prior approval of the local authority to the position on the land where the well or works are to be constructed, and then requires construction to be in that position. The regulation does not allow retrospective approval or cure; commencing works before obtaining approval exposes the constructor to criminal offence risk under reg 14. The obligation is to the position rather than to a design specification, so a change of position without fresh approval could itself contravene the provision.

Who is the "occupier": Reg 12 places the duty on the "occupier" of premises to ensure a well complies before use for human consumption. The regulations do not define "occupier" in the text. The relevant definition may exist in the parent Act or in general legal principles, but the instrument itself is silent. That creates potential ambiguity in multi‑tenanted sites, leased properties, or where operational control and title differ.

Ambiguous measurement points: Distance requirements are expressed in metres but the regulations do not specify measurement methodology, direction, or whether distances are horizontal or diagonal. For example, the 30 metre separation in reg 12(a) and reg 13 could raise questions about measurement from edges, centres, or particular items (soak well rim, drain outlet), and the regulations do not provide measurement rules.

Vague terms: The instrument uses terms such as "impervious material", "soak well", "probable source of pollution", "tight‑fitting cover", and "offensive matter" without technical definitions. The absence of clear definitions introduces interpretive uncertainty and potential enforcement disputes over what materials or circumstances meet the textual threshold.

No technical standard references: The regulations set prescriptive dimensions and distances but do not reference technical standards, materials specifications, or certification requirements. For example, there is no nominated standard for what constitutes an acceptable impervious lining, nor requirements for testing or certification after installation.

Enforcement and procedural shortfalls: The regulations criminalise breaches and provide penalty bands, but they do not create express administrative remedial powers such as notice to remedy, orders to decommission, or recoverable remediation costs. Enforcement therefore depends on criminal process or on other statutory powers not included in this instrument.

Repeat offence counting: The penalty table increases minimum penalties for second and third or subsequent offences, but there is no provision specifying how offences are aggregated over time, whether they are of the same subject matter, or how remediation affects counting. That practical uncertainty can complicate enforcement and plea negotiations.

Applicability to existing wells: The regulations do not state whether existing wells constructed before the regulations or before the approval requirement are grandfathered or require modification to meet reg 12 if they are to be used for human consumption. Reg 12 is framed as a prohibition on use for human consumption unless the well complies, which suggests practical obligations on existing occupiers intending to use existing wells, but the instrument does not supply transitional rules.

Pump access and non‑pump wells: Reg 12(c) permits only an opening essential for insertion of a pump. The wording could make compliance difficult for wells designed for bucket and rope access, or for maintenance access that requires a larger opening. The regulation may effectively require a pump for wells used for human consumption.

Monetary penalty quantum and potential obsolescence: The penalty caps and minima are specified in nominal dollar terms (reg 14). The regulations do not state that these sums are indexed. Depending on the date and currency value, the specified amounts may be outdated for present risk assessment and may understate the financial exposure compared to current administrative penalty practices elsewhere.

Administrative steps before construction

1. Identify whether the land is in a district listed in Schedule B (reg 2 and Schedule B). The obligations only apply within those districts.

2. Before any construction begins, submit an application to the local authority seeking approval of the position on the land for the well or any works for disposal of offensive matter (reg 11). Do not commence or cause construction until that approval is obtained, as the regulations require prior positional approval and prohibit construction without it.

Technical construction measures to meet reg 12

3. Ensure minimum separation: Plan the well location so it is at least 30 metres from any soak well or any other probable source of pollution, taking a conservative measurement approach to avoid ambiguity (reg 12(a)).

4. Lining specification: Construct the well with an impervious lining to a depth of at least 1.8 metres below the surface, with the lining carried up at least 300 millimetres above the adjacent ground surface. Choose materials and installation methods that provide durable imperviousness consistent with the description in reg 12(b).

5. Cover requirements: Fit a tight‑fitting cover that has no opening other than that essential for insertion of a pump (reg 12(c)). If the well design does not use a pump, consult the local authority about acceptable cover arrangements to avoid non‑compliance.

6. Surface apron and grading: Construct an impervious surface apron around the well for at least 600 millimetres in all directions, and grade the surface to fall away from the well so surface runoff does not flow toward the well (reg 12(d)).

Operational and depositional controls

7. Prevent deposits of polluting matter within 30 metres: Avoid depositing sewage, offensive matter, or any other substance that may pollute the underground source within 30 metres of any well or underground source used or likely to be used for human consumption (reg 13). This obligation applies to landowners, occupiers, and contractors disposing of waste.

Documentation and approvals

8. Retain written evidence of local authority approval for the position of the well, and document construction specifications, materials, and as‑built positions. The regulation mandates prior approval but does not specify recordkeeping; retaining documentation will aid compliance verification and defence in any enforcement action.

9. Seek written clarification from the local authority on any ambiguities: Because terms such as “impervious material”, “probable source of pollution” and measurement points are not defined in the regulations, obtain written guidance from the local authority on how they will interpret distances, acceptable materials and covers, and whether they require additional approvals or inspections.

Risk mitigation and enforcement exposure

10. Treat the obligation to ensure compliance before using the water for human consumption seriously. Reg 12 makes use for human consumption conditional on compliance with the technical requirements. If you occupy premises with an existing well that does not meet the regs, either modify the well to comply, obtain the local authority’s written position (if any) about legacy wells, or cease using the water for human consumption.

11. If you face enforcement action, expect the penalty regime in reg 14: minimum fines that increase on repeat offending (first offence minimum $100, second $200, third or subsequent $500), a maximum single fine of $1 000, and continuing offences potentially attracting daily penalties between $50 and $100. Because the regulations do not set administrative remedial powers, enforcement may be by prosecution seeking these monetary penalties.

Practical suggestions for builders and occupiers

12. Engage qualified contractors familiar with local authority requirements in the relevant district. Even though the regulations do not mandate certification, documented compliance with the dimensional and material requirements is the practical route to avoiding use prohibitions.

13. Where wells are intended for human consumption, consider integrating compliance checks with other statutory regimes, for example building approvals or environmental health assessments under the parent Act or local government by‑laws, seeking to align approvals and inspections.

14. For multi‑user premises, clarify who is the occupier for the purpose of reg 12, and ensure leases or occupancy arrangements allocate responsibility for well compliance to the appropriate party.

15. If in doubt about applicability to a particular site or activity, obtain written confirmation from the local authority and, for legal certainty, seek legal advice or apply for a formal determination under the parent Act or via administrative review routes available under general administrative law.

Following these steps will align practical activity with the explicit textual duties in regs 11-13 and reduce exposure to the monetary penalties in reg 14. Where uncertainty persists on terms or measurement, secure written guidance from the approving local authority and preserve records of approvals and construction choices.