Ballina Shire Council v Jacobson and McMillan

[2006] NSWLEC 217

Land and Environment Court

of New South Wales

CITATION:	Ballina Shire Council v Jacobson & McMillan [2006] NSWLEC 217
PARTIES:	APPLICANT Ballina Shire Council RESPONDENTS Clayton Jacobson & Lee Anne McMillan
FILE NUMBER(S):	40773 of 2005
CORAM:	Jagot J
KEY ISSUES:	Civil Enforcement :- Sewerage works and operation of a system of sewerage management - diversion of wastewater - requirement for approvals under s 68 and s 68A of the Local Government Act 1993 - making of final orders to protect public health and the environment
LEGISLATION CITED:	Local Government Act 1993 s 68, s 68A, s 124, s 676(1)
DATES OF HEARING:	17/02/2006, 20/02/2006, 21/02/2006, 22/02/2006
DATE OF JUDGMENT:	05/30/2006
LEGAL REPRESENTATIVES:	APPLICANT M Stevens SOLICITORS W J Grace & Co RESPONDENTS C Jacobson & L McMillan (in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

30 May 2006

40773 of 2005

BALLINA SHIRE COUNCIL
Applicant

CLAYTON JACOBSON & LEE ANNE McMILLAN
Respondents

JUDGMENT

1. On 28 March 2006 I delivered my reasons for judgment in this matter. I gave the parties an opportunity to be heard on the form of the draft Orders which I annexed to my reasons.

2. The Council filed and served a submission to the effect that proposed order 2(a) ought to include the following specification:

The area to be treated comprises approximately 84 square metres and extends some 2 metres north off the north east corner of the southern building, following the building line, and then to a point 6 metres west into the road reservation then 14 metres south and running parallel to the southern building and then running 6 metres to the east to the wall of the southern building, such an area being marked generally in accordance with the red hatching on the plan annexed hereto and marked “A”.

3. The Council also submitted that, in proposed order 12, the word “southern” in the first line should be replaced with the word “northern”.

4. At a telephone mention on 9 May 2006, I provided the respondents with an extension of time (until 12 May 2006) to make a submission on the form of the draft orders. The respondents did not do so.

5. I accept the Council’s submissions. It follows that, for the reasons set out in my principal reasons, orders should be made in accordance with annexure “A”.

6. The terms of these orders depart, in some respects, from the Council’s order issued under s 124 of the Local Government Act 1993 and the class 4 application. Section 676(1) of the Local Government Act 1993 provides that if the Court is satisfied that a breach of the Act has been committed or 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. Having regard to the findings in my principal reasons, I consider that: -

(1) Order 1(c) is necessary so that the injunction restraining use of the premises does not apply if all wastewater from the buildings on the premises is managed in accordance with approvals granted under s 68 and s 68A of the Local Government Act 1993. This operates in the alternative to orders 1(b) and 1(c).
(2) Given the proximity of the premises to Emigrant Creek and location in a high water table area, the wastewater tanks ought to be fitted with an alarm system, in addition to the respondents providing to the Council a copy of the pump out contract for those tanks (rather than in the alternative to the respondents so doing).
(3) The wastewater tank system for the northern building ought to comprise (at least) a tank and holding well of not less than 2050 litres capacity each (rather than a single tank).

7. Accordingly, I make orders in accordance with annexure “A” hereto.

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ANNEXURE “A”

ORDERS

1. The respondents, and each of them, are forthwith restrained from using, or causing or permitting to be used, the land known as No’s 14 – 22 Smith Drive, West Ballina, being lot 1 DP 605260 (the “premises”), and the buildings upon those premises, for any purpose:

(a) unless and until the works specified in orders (2), (3), (4), (7), (9), (10), (11) and (14), and the requirements of orders (5) and (12), are carried out and completed; and
(b) other than in circumstances where all wastewater from the buildings is directed at all times in accordance with the requirements of orders (6), (8), (13) and (15) below,
or where all wastewater from the buildings:
(c) is otherwise managed in accordance with the requirements of approvals granted in accordance with s 68 and s 68A of the Local Government Act 1993 (or any replacement or amendment of those sections).

2. (a) Within 28 days of the date of these orders, the respondents shall sanitise and deodorise the area of the Smith Drive road reservation that has been impacted by the discharge of wastewater from the southern building by treating that area with fine agricultural lime. The area to be treated comprises approximately 84 square metres and extends some 2 metres north off the north east corner of the southern building, following the building line, and then to a point 6 metres west into the road reservation then 14 metres south and running parallel to the southern building and then running 6 metres to the east to the wall of the southern building, such an area being marked generally in accordance with the red hatching on the plan annexed hereto and marked “A”.

(b) The respondents shall give to the applicant at least 7 days’ notice in writing of the commencement of these works and must notify the applicant within 48 hours of the completion of the works.
(c) The respondents must ensure that these works, at all times, are carried out under the supervision of a qualified civil engineer with experience in the management of wastewater.

3. Prior to discharging any wastewater from the southern building into the existing southern holding tanks, the respondents shall disconnect all pipework used or capable of being used to convey wastewater from the southern building to the southern absorption areas.

4. Prior to discharging any wastewater from the southern building into the existing southern holding tanks, the respondents shall install an audible and visual alarm to the southern holding well which must be set to trigger when the holding well reaches 75% capacity or when 3 days flow capacity remains in the existing southern holding tanks.

5. Prior to discharging any wastewater from the southern building into the existing southern holding tanks, the respondents shall submit to the applicant a copy of the contract entered into by or on behalf of the respondents for the pumping out of the existing southern holding tanks.

6. The respondents shall ensure that any discharge of wastewater from the southern building is directed into the existing southern holding tanks.

7. The respondents shall ensure that all works carried out pursuant to orders (3), (4) and (6) above, and all works (and, where relevant, fixtures) ancillary thereto:

(a) are carried out by a person who holds a permit issued in accordance with the Plumbing and Drainage Code of Practice (as defined in the Local Government (General) Regulation 2005); and
(b) comply with all requirements of the Local Government (General) Regulation 2005) being requirements which would apply to such works, if such works had been the subject of an approval under s 68 and/or 68A of the Local Government Act 1993.

8. The respondents shall ensure that the discharge of any wastewater from the southern building into the existing southern holding tanks is carried out in accordance with all requirements of the Local Government (General) Regulation 2005 being requirements which would apply to that activity, if that activity had been the subject of an approval under ss 68 and/or 68A of the Local Government Act 1993.

9. The respondents shall ensure that a tank and holding well of not less than 2050 litres capacity each is installed to service the northern building. In these orders, these tanks are referred to as the northern holding tanks.

10. Prior to discharging any wastewater from the northern building into the northern holding tanks, the respondents shall disconnect all pipework used or capable of being used to convey wastewater from the northern building to the northern absorption areas.

11. Prior to discharging any wastewater from the northern building into the northern holding tanks, the respondents shall install an audible and visual alarm to the northern holding well which must be set to trigger when the holding well reaches 75% capacity or when 3 days flow capacity remains in the northern holding tanks.

12. Prior to discharging any wastewater from the northern building into the northern holding tanks, the respondents shall submit to the applicant a copy of the contract entered into by or on behalf of the respondents for the pumping out of the northern holding tanks.

13. The respondents shall ensure that any discharge of wastewater from the northern building is directed into the northern holding tanks.

14. The respondents shall ensure that all works carried out pursuant to orders (9), (10), (11) and (13) above, and all works (and, where relevant, fixtures) ancillary thereto:

(a) are carried out by a person who holds a permit issued in accordance with the Plumbing and Drainage Code of Practice (as defined in the Local Government (General) Regulation 2005); and
(b) comply with all requirements of the Local Government (General) Regulation 2005) being requirements which would apply to such works, if such works had been the subject of an approval under s 68 and/or 68A of the Local Government Act 1993.

15. The respondents shall ensure that the discharge of any wastewater from the northern building into the northern holding tanks is carried out in accordance with all requirements of the Local Government (General) Regulation 2005 being requirements which would apply to that activity, if that activity had been the subject of an approval under ss 68 and/or 68A of the Local Government Act 1993.

16. The interlocutory orders made by the Court on 25 August 2005 are dissolved.

17. Costs are reserved.

In these Orders:

northern absorption areas

means the sub-surface irrigation areas or absorption pits servicing the northern building on the premises.

northern building

means the building located at the northern end of the premises.

northern holding tanks

means the tanks required to be installed pursuant to these orders to service the northern building.

northern holding well

means that part of the northern holding tanks which functions as the collection well.

southern absorption areas

means the sub-surface irrigation areas or absorption pits servicing the southern building on the premises.

southern building

means the building located at the southern end of the premises.

existing southern holding tanks

means the two concrete tanks present on the premises which are available to service the southern building.

southern holding well

means that part of the existing southern holding tanks which functions as the collection well.

wastewater

means discharges from fixtures (including toilets, urinals, showers, baths, kitchen sinks, tubs and basins, laundry sinks, tubs and basins and other sinks, tubs and basins).