Ballina Shire Council v Jacobson and McMillan - [2006] NSWLEC 135

No judgment structure available for this case.

Reported Decision: (2006) 146 LGERA 156

Land and Environment Court

of New South Wales

CITATION: Ballina Shire Council v Jacobson & McMillan [2006] NSWLEC 135

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: Land and Environment Court Act 1979 s 20(1)(d)
Local Government Act 1993 s67, s 68, s 68A, s 89, s 124, s 180(1), s 192, s 193, s 672, s 673, s 674(1), s 676, s 710, s 748(1)
Local Government (Amendment) Miscellaneous Act 2002
Local Government (Approvals) Amendment (Plumbing and Drainage Code of Practice) Regulation 2004
Local Government (Approvals) Regulation 1999 Pt 3, Sch 2, cl 8, cl 13, cl 15, cl 16, cl 20, cl 25, cl 28, cl 31, cl 38, cl 42, cl, 43, cl 44, cl 45, cl 46, cl 47, Pt 4
Local Government (General) Regulation 2005
Local Government (Water Services) Regulation 1999 cl 20
Protection of the Environment Operations Act 1997

CASES CITED: Auburn Municipal Council v Szabo (1988) 67 LGERA 423;
Barak v WTH Pty Ltd t/as Avis Australia [2002] NSWSC 649;
Commonwealth Development Bank of Australia Pty Ltd Another v Cassegrain [2002] NSWSC 980;
Hepples v Federal Commissioner of Taxation (1990) 94 ALR 81;
Hubertus Schuetzenverein Liverpool Rifle Club Limited v Commonwealth of Australia (1994) 51 FCR 213; 85 LGRA 37;
Jermen v Shell Co Australia Limited [2003] NSWSC 1106;
Langbourne v State Rail Authority [2003] NSWSC 537;
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705;
Parramatta City Council v Shell Co of Australia Limited [1972] 2 NSWLR 632;
Portal Software v Bodsworth [2005] NSWSC 1228;
Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321;
Sydney Serviced Apartments v North Sydney Municipal Council [No 2] (1993) 78 LGERA 404;
United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870;
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339;
Woolworths Limited v Campbell’s Cash and Carry Pty Ltd (1996) 92 LGRA 244

DATES OF HEARING: 17/02/2006, 20/02/2006, 21/02/2006, 22/02/2006

DATE OF JUDGMENT:
03/29/2006

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

29 March 2006

40773 of 2005

BALLINA SHIRE COUNCIL
Applicant

CLAYTON JACOBSON & LEE ANNE McMILLAN
Respondents
JUDGMENT

Jagot J:
Introduction

1 This is a class 4 application in which the Ballina Shire Council (“the Council”) as applicant seeks orders against the respondents: - (i) restraining the discharge of “domestic wastewater” from two structures on premises owned by the respondents and known as No’s 14 – 22 Smith Drive, West Ballina, being lot 1 in DP 605260 (the “premises”), and (ii) requiring the carrying out of certain works to plumbing and drainage facilities servicing those structures.

2 The principal issues for determination are whether the respondents installed and used facilities and made arrangements for wastewater management on the premises absent approval and in breach of the Local Government Act 1993 (in whole or part) and, if so, whether orders should be made against the respondents to restrain and rectify any such breaches. An issue also arises with respect to enforcement of an order served by the Council on the respondents under s 124 of the Local Government Act 1993, relating to management of wastewater on the premises.

3 The proceedings are related to proceedings 21462 of 2004. The class 2 proceedings involved an appeal (under s 180) against the order given by the Council under s 124 of the Local Government Act 1993. The order was given on 21 October 2004 under item 22 of the Table to s 124 (the “s 124 order”). That section provides as follows:

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.

…

*Column 1*	*Column 2*	*Column 3*
*To do what?*	*In what circumstances?*	*To whom?*
22 To store, treat, process, collect, remove, dispose of or destroy waste which is on land or premises in the manner specified in the order, provided that it is not inconsistent with regulations made under the Protection of the Environment Operations Act 1997	Waste is present or generated on the land or premises and is not being dealt with satisfactorily, and is not regulated or controlled by, or subject to, a licence or notice granted or issued under the Protection of the Environment Operations Act 1997	Owner or occupier of land or premises, owner of or person responsible for the waste or for any receptacle or container in which the waste is contained

4 The class 2 proceedings were discontinued by consent on 8 April 2005. On 30 June 2005, the respondents filed a notice of motion seeking to set aside the consent orders in the class 2 proceedings. The notice of motion was listed for hearing with this class 4 application. I determined that the notice of motion in the class 2 proceedings ought to be heard and determined prior to the hearing of the class 4 proceedings. The hearing of the class 2 notice of motion took place on 15 and 16 February 2006. I dismissed the notice of motion on 17 February 2006. The class 4 proceedings were then heard.

5 Certain interlocutory orders made by Bignold J on 25 August 2005, in part, set the factual context within which these proceedings must be determined. Bignold J made interlocutory orders in these proceedings as follows:

1. On an interlocutory basis and until further order of the Court the Respondents or any one or more of them at their own cost and expense carry out or cause to be carried out at the expiry of 7 days following their return to the jurisdiction (unless within that time the Respondents move to have the orders set aside) the following works at premises situate at Lot 1 DP 605260 No. 14 Smith Drive, West Ballina, NSW:

(i) Redirect all sanitary drainage not already discharging to existing effluent holding tanks situated on the premises into the said holding tanks;

(ii) Pump out all existing holding tanks situated on the premises on a daily basis, including weekends;

(iii) Submit to Ballina Shire Council’s Environmental and Public Health Unit by fax to facsimile no. (02) 6681-1375 copies of receipts for each daily pump out no later than 2.00pm every day.

2. On an interlocutory basis and until further order of the Court that if the above works are not complied with fully at any time to the satisfaction of the Applicant, the Respondents and each of them be restrained from using or causing or permitting to be used the land and buildings at Lot 1 DP 605260 for any purpose.

3. Costs of the interlocutory proceedings be reserved.

6 It is common ground that the respondents carried out certain works after the interlocutory orders. It is also common ground that the use of the premises ceased at some time after the making of the orders. The respondents ceased the use, they say, because interlocutory orders 1(ii) and (iii) imposed too heavy a burden compared to the benefits of using the premises.

7 The Council now seeks final orders with respect to the plumbing and drainage facilities and arrangements for disposal of wastewater on the premises. The respondents contend that there is no basis for making final orders and, in consequence, the interlocutory orders ought to be dissolved.

The statutory provisions

8 Many aspects of the dispute between the Council and the respondents arise from their competing understandings of the operation of the Local Government Act 1993 and the Regulations made under that Act (the Regulations have been repealed and re-made from time to time, whereas the Act has remained in force but has been amended from time to time). It is necessary to identify the applicable legislative context so that the significance of the factual findings that I make may be understood. The starting point for this consideration is the year 2000 as the respondents acquired the premises in or about that year. In the paragraphs below, the provisions operated at all relevant times unless otherwise stated.

The Local Government Act 1993

9 Section 672 of the Local Government Act 1993 provides that:

In this Part:

(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.

10 Section 673(1) provides that:

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.

11 Section 674(1) provides that:

Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act.

12 Section 676 provides that:

(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.

13 Prior to 1 August 2002 (the date on which the Local Government (Amendment) Miscellaneous Act 2002 came into force) s 68 provided that:

(1) A person may carry out an activity specified in the following Table only with the prior approval of the council, except in so far as this Act, the regulations or a local policy adopted under Part 3 allows the activity to be carried out without that approval.

…

Table

Approvals

Part B Water supply, sewerage and stormwater drainage work

1

Carry out water supply work

2

Draw water from a council water supply or a standpipe or sell water so drawn

3

Install, alter, disconnect or remove a meter connected to a service pipe

4

Carry out sewerage work

5

Carry out stormwater drainage 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

1

For fee or reward, transport waste over or under a public place

2

Place waste in a public place

3

Place a waste storage container in a public place

4

Dispose of waste into a sewer of the council

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

Part F Other activities

…

10

Carry out an activity prescribed by the regulations or an activity of a class or description prescribed by the regulations

14 The Dictionary to the Local Government Act 1993 contains the following definitions:

approval

means an approval that is in force under this Act.

drain

means a drain for the carrying off of waters other than sewage.

human waste

means human faeces and urine.

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.

sewerage work

means the construction, alteration, extension, disconnection, removal, ventilation, flushing or cleansing of any sewerage service pipes or fittings or fixtures communicating or intended to communicate, directly or indirectly, with:

(a) a septic tank, an effluent or a sullage disposal system, or

(b) any sewer of a council,

and includes work of sanitary plumbing and work of house drainage.

waste

means:

(a) effluent, being any matter or thing, whether solid or liquid or a combination of solids and liquids, which is of a kind that may be removed from a human waste storage facility, sullage pit or grease trap, or from any holding tank or other container forming part of or used in connection with a human waste storage facility, sullage pit or grease trap, or

(b) trade waste, being any matter or thing, whether solid, gaseous or liquid or a combination of solids, gases and liquids (or any of them), which is of a kind that comprises refuse from any industrial, chemical, trade or business process or operation, including any building or demolition work, or

(c) garbage, being all refuse other than trade waste and effluent,

and includes any other substance defined as waste for the purposes of the Protection of the Environment Operations Act 1997, and a substance is not precluded from being waste merely because it is capable of being refined or recycled.

15 The Protection of the Environment Operations Act 1997 defines “waste” in the Dictionary to that Act:

"waste"

(unless specially defined) includes:

(a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or

(b) any discarded, rejected, unwanted, surplus or abandoned substance, or

(c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, reprocessing, recovery or purification by a separate operation from that which produced the substance, or

(d) any substance prescribed by the regulations to be waste for the purposes of this Act.

A substance is not precluded from being waste for the purposes of this Act merely because it can be reprocessed, re-used or recycled.

16 The Local Government (Amendment) Miscellaneous Act 2002 came into force on 1 August 2002. That Act inserted s 68A into the Local Government Act 1993 as follows:

68A Meaning of “operate a system of sewage management”

(1) In this Part, operate a system of sewage management means hold or process, or re-use or discharge, sewage or by-products of sewage (whether or not the sewage is generated on the premises on which the system of sewage management is operated).

(2) Without limiting subsection (1), operate a system of sewage management includes the following:

(a) use artificial wetlands, transpiration mounds, trenches, vegetation and other effluent polishing, dispersal or re-use arrangements in related land application areas,

(b) hold or process sewage that is to be subsequently discharged into a public sewer.

(3) However, operate a system of sewage management does not include any of the following:

(a) any action relating to the discharge of sewage directly into a public sewer,

(b) any action relating to sewage or by-products of sewage after their discharge into a public sewer.

(4) In this section:

public sewer

means a sewer operated by a council or county council, a water supply authority (within the meaning of the Water Management Act 2000), a State owned corporation specified in Schedule 1 or 5 to the State Owned Corporations Act 1989 (or a subsidiary of such a corporation) or any other public or local authority.

related land application area

, in relation to a sewage management facility, means the area of land (if any) where it is intended that effluent and bio-solid waste from the facility will be re-used, applied or dispersed into the environment.

sewage

includes any effluent of the kind referred to in paragraph (a) of the definition of waste in the Dictionary to this Act.

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.

17 The Local Government (Amendment) Miscellaneous Act 2002 also inserted item 6 into Part C of the table to s 68 as follows:

6

Operate a system of sewage management (within the meaning of section 68A)

18 As explained below, this amendment was one of form rather than substance because the operation of a system of sewage management required approval prior to the 2002 amendment by reason of item 10 to Part F of the table to s 68 (“carry out an activity prescribed by the regulations or an activity of a class or description prescribed by the regulations) and cl 45 of the Local Government (Approvals) Regulation 1999 which provided that:

The operation of a system of sewage management is a prescribed activity for the purposes of item 10 of Part F of the Table to section 68 of the Act.

19 Clause 45 was repealed by the Local Government (Approvals) Amendment (Plumbing and Drainage Code of Practice) Regulation 2004 published in the New South Wales Government Gazette on 17 December 2004. The clause, however, had been redundant since the insertion of s 68A into the Local Government Act 1993. In other words, the operation of a system of sewage management, at all times, required approval.

20 The Local Government (Amendment) Miscellaneous Act 2002 also amended the defined term “sewerage work” by the deletion of the words “or cleansing” and the insertion of the words “cleansing, maintenance, repair, renewal or clearing”.

21 Section 89 of the Local Government Act 1993 provides that:

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.

22 The relevant parts of s 124 of the Local Government Act 1993 have been reproduced above.

23 Section 748(1) of the Local Government Act 1993 provides that:

The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

The Regulations

24 Until 1 September 2005 (the date on which the Local Government (General) Regulation 2005 came into force), the relevant regulations were the Local Government (Approvals) Regulation 1999 and the Local Government (Water Services) Regulation 1999. All but one clause of the 1999 Regulations (a clause which is not relevant to this matter in any event) has been reproduced in substance in the 2005 Regulation.

25 Clause 20 of the Local Government (Water Services) Regulation 1999 provided that:

Water supply work, sewerage work and stormwater drainage work must comply with any applicable standards or requirements set out or referred to in the Act, this Regulation or the Local Government (Approvals) Regulation 1999.

26 The Local Government (Approvals) Regulation 1999 contained detailed provisions supplementing the Local Government Act 1993, under which the Regulations were made. The provisions regulated the carrying out of water, sewer and related plumbing works and facilities. As noted, the substance of these provisions (with updated references to various standards and codes and certain other amendments) is now reflected in the Local Government (General) Regulation 2005.

27 The following terms were defined in the Local Government (Approvals) Regulation 1999:

"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.

"Manual of Authorization Procedures"

means the Manual of Authorisation Procedures for Plumbing and Drainage Products (MP 52 - 1991) published by Standards Australia;

"Plumbing and Drainage Code of Practice"

means the New South Wales Code of Practice Plumbing and Drainage produced by the Committee on Uniformity of Plumbing and Drainage Regulations in New South Wales, as in force from time to time;

"septic tank"

means a fixed receptacle of watertight material used in connection with the storage or bacterial treatment of sewage;

"sewage of a domestic nature"

includes human faecal matter and urine and waste water associated with ordinary kitchen, laundry and ablution activities of a household. It does not include the contents of a pan, septic tank, cesspool or privy.

"sewerage service"

, in relation to premises:

(a) means the pipes, fittings or fixtures used or intended to be used in connection with the premises for the purpose of conveying sewage or permitted discharges from the premises to the council s sewerage system, and

(b) if a septic tank is installed on the premises and connects or is intended to connect (directly or indirectly) with the council s sewerage system includes a septic tank (other than a septic tank intended to discharge to a related effluent application area), an effluent tank or a sullage tank.

"soil pipe"

means any pipe that conveys the discharge from human waste storage facilities, or from operating theatres or morgues, to the house drains.

"trade waste"

means all liquid waste other than sewage of a domestic nature.

"waste pipe"

means any pipe that conveys discharges to a house drain from fixtures (other than human waste storage facilities) or operating theatres or morgues.

28 The 2005 Regulation maintains the substance of those definitions, but also adds a definition of “sewage” as follows:

"sewage"

includes any effluent of the kind referred to in paragraph (a) of the definition of "waste" in the Dictionary to the Act.

29 Part 3 of the Local Government (Approvals) Regulation 1999 concerned approvals relating to (relevantly) sewerage work. Clause 13 provided that:

The council must not approve an application for an approval allowing water supply, sewerage or stormwater drainage work to be carried out unless it is satisfied that the activity as proposed to be carried out will comply with any applicable standards set out or referred to in Schedule 2 and with any other applicable standards or requirements set out or referred to in this Regulation.

30 Schedule 2, para 1, provided that:

Water supply work, sewerage work and stormwater drainage work must comply with the Plumbing and Drainage Code of Practice except where otherwise provided in the Act, this Regulation or the Local Government (Water Services) Regulation 1999.

31 Schedule 2, paras 6 and 7, provided that:

6 Requirements as to water closet suites

(1) A water closet suite must not be installed unless it complies with subclause (2) or is a type approved under subclause (3).

(2) A water closet suite must:

(a) have a cistern with a maximum flushing volume of at least 6 litres, and

(b) if the suite is to be installed in a class 1 or class 2 building (as defined in the Building Code of Australia ):

(i) the cistern must be of the dual flushing kind, and

(ii) the suite must satisfy the requirements of the Manual of Authorization Procedures .

However, a water closet suite also complies with this subclause if it is to be connected to a soil stack and has a cistern with a flushing volume of at least 4 litres.

(3) The Director-General of the Department of Land and Water Conservation may approve in writing a type of water closet suite that:

(a) has a different maximum flushing capacity from that referred to in subclause (2) (a), or

(b) in the case of a suite that is to be installed in a class 1 or class 2 building, does not satisfy the requirements of subclause (2) (b) (ii).

Note:

A "soil stack" is a vertical sewer pipe located in a multi-storey building.

7 Materials for use in water supply, sewerage or stormwater drainage work

(1) Materials used in carrying out water supply, sewerage or stormwater drainage work referred to in item 1, 4 or 5 of Part B of the Table to section 68 of the Act must be of a kind authorised for the purposes of the work:

(a) by the Director-General of the Department of Land and Water Conservation, or

(b) under the Manual of Authorization Procedures .

(2) If an inconsistency arises under subclause (1), the authorisation of the Director-General of the Department of Land and Water Conservation prevails.

32 Clause 15 prescribed matters for consideration in determining applications for approval for sewerage work, including:

(a) the protection and promotion of public health,

(b) the protection of the environment,

(c) the safety of its employees,

(d) the safeguarding of its assets,

(e) any other matter that it considers to be relevant in the circumstances.

33 Clause 16 imposed prescribed conditions of an approval for the carrying out of sewerage work by reference to Sch 2 (see above).

34 Clause 20 required the persons carrying out sewerage work to hold a permit under the Plumbing and Drainage Code of Practice.

35 Part 4 of the Local Government (Approvals) Regulation 1999 concerned approvals relating to the management of waste. Clause 25 contained the following definitions:

In this Part:

"

environmentally sensitive area

" includes:

(a) land or an area listed in the definition of environmentally sensitive area in Part 3 of Schedule 3 to the Environmental Planning and Assessment Regulation 1994 , and

(b) any land or area:

(i) within 100 metres of a natural waterbody, wetland or coastal dune field, or

(ii) with a high watertable, or

(iii) with highly permeable soils or acid sulphate, sodic or saline soils, or

(iv) within a drinking water catchment, or

(v) within the water catchment area of an estuary where the entrance to the sea is intermittently open.

"

related effluent application area

", in relation to a sewage management facility, means the area of land (if any):

(a) where it is intended to dispose of the effluent and any by-products of sewage from the facility, or

(b) to which the effluent and by-products are intended to be applied.

"sewage"

includes any effluent of the kind referred to in paragraph (a) of the definition of "waste" in the dictionary to the Act.

"

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.

36 Clause 28 prescribed the matters required to be accompany an application to install or construct sewage management facilities. If an application related to an environmentally sensitive area, that area was required to be identified in the application for approval. Clause 31 prescribed the matters to be considered in determining an application to install, construct or alter sewage management facilities. Clause 8 set out performance standards for sewage management facilities. Clauses 42 and 43 provided for accreditation of certain components of sewage management facilities (including septic tanks).

37 Division 7 concerned the operation of a system of sewage management. It contained cl 45 prior to its repeal. Clause 44 contained a definition of “operate a system of sewage management” in the same terms as s 68A. Clause 46 prescribed the matters to be taken into consideration in determining applications for approval to operate a system of sewage management.

38 Division 8 imposed performance standards on the operation of systems of sewage management (which, as noted, required approval by reason of item 10 of Part F of the Table to s 68 and clause 45 of the 1999 Regulation prior to its repeal).

The principal contentions of the parties

The Council

39 The Council’s principal contentions may be summarised as follows:

(a) To the southern building:- (i) removal of the plumbing facilities from the upstairs, installing new facilities including a new shower and shower tub, a toilet, urinal and hand basin, and connection of those facilities to a sub-surface absorption area/pit adjacent to the southern building which is located in part on the road reserve, and (ii) installation of a new shower and wall in the downstairs section; and

(b) To the northern building:- (i) installation of a ship’s head toilet, connection of that toilet to the water main and to the piping which is connected to an elevated tank, (ii) installation of the elevated tank and associated pipework including the pipework which enables the tank to be emptied by suction, (iii) connection of a sink to the sub-surface absorption area/pit adjacent to the northern building, (iii) installation of a basin and shower on the mezzanine level and connection of those facilities to the sub-surface absorption area/pit.

I will refer to these works as the “2002 works”.

(2) All of the 2002 works fell within the definition of “sewerage works” in the Dictionary to the Local Government Act 1993. The Council relies on sub-para (a) of the definition of that term (to paraphrase, works directly or indirectly connected with a septic tank, an effluent or a sullage disposal system). The Council contends that the definition of “sewerage works”, particularly by the inclusion of reference to an effluent or a sullage disposal system, is ample to apply to all works relating to drainage of all waste streams from buildings (and not merely “human waste” as defined). The Macquarie Dictionary, 2nd ed., defines “sullage” as “1. refuse, scum or filth, 2. Bldg trades dirty water, as from bathrooms, laundries, kitchens etc., excluding sewage” and “sullage pit” as “a pit in which waste, esp. sewage, is held”. “Effluent” is defined as “1. flowing out or forth. 2. that which flows out or forth; outflow…4. the outflow from sewage during purification.” Hence, all discharges are “effluent”.

(3) Further, item 5 in Part C of the table to s 68 refers to “waste treatment device” as well as human waste storage facility. “Waste treatment device” is not defined. This concept encompasses any device to treat any superfluous matter (see, again, the definition of “waste” in the Macquarie Dictionary).

(4) Approval was required for the 2002 works by reason of item 4 in Part B and item 5 in Part C of the table to s 68 of the Local Government Act 1993, but no approval was obtained.

(5) The respondents breached the Local Government Act 1993 (s 672) by failing to obtain approval, thereby enlivening the jurisdiction of this Court (s 673 of the Local Government Act 1993 [and see also s 20(1)(d) of the Land and Environment Court Act 1979]).

(6) The respondents also used or caused the use of the 2002 works. This use, including the discharge of all wastewater not being human waste, was the operation of a system of sewage management within the meaning of s 68A (or, prior to s 68A coming into force, item 10 of Part F of the Table to s 68 and cl 45 of the Local Government (Approvals) Regulation 1999. As noted, cl 45 was repealed after s 68A came into force because the provisions were to the same effect). “Sewage”, by definition, “includes any effluent of the kind referred to in para (a) of the definition of waste”. Paragraph (a) of the definition of waste depends on the concepts of “human waste storage facility, sullage pit or grease trap”. Although wastewater not comprising human waste cannot be related to a human waste storage facility, the concept “sullage pit” is broader (see above). Also, “grease trap” would apply to any industrial or trade waste.

(7) Section 68A (or its predecessor provision - item 10 of Part F of the table to s 68 and cl 45 of the Local Government (Approvals) Regulation 1999) required the respondents to obtain approval to use (that is, to operate) the 2002 works. No approval was obtained. The respondents’ failure to obtain the approval was in breach of the Local Government Act 1993 (s 672), thereby enlivening the jurisdiction of this Court (s 673 of the Local Government Act 1993 [and see also s 20(1)(d) of the Land and Environment Court Act 1979]).

(8) Various components of the works could not have been approved because they did not comply with the requirements of the Local Government (Approvals) Regulation 1999 (see s 89 and cl 13). In particular, the elevated tank installed near the northern building is not the subject of a certificate of accreditation as required for a septic tank (cll 42 and 43), the hose connecting that tank to the ship’s head toilet is not of an authorised kind (Sch 2 para 7) and the ship’s head toilet itself does not comply with the Plumbing and Drainage Code of Practice (Sch 2 para 1) and is not of an approved type for such use (Sch 2 para 6). The absorption area for the southern building is in part in the Council’s road reserve and could or would not be approved in that location.

(9) The works and their use were unsatisfactory overall and would not have been approved having regard to the terms of s 89 of the Local Government Act 1993 and the relevant considerations in cll 15 and 31, and the matters referred to in cll 28, 38 and 47, of the Local Government (Approvals) Regulation 1999. This is particularly so given that the premises are within an “environmentally sensitive area” as defined in cl 25 of the Regulation (being within 100 metres of Emigrant Creek and in an area of high watertable). The unsatisfactory arrangements were disclosed through certain inspections and tests carried out by the Council officers, particularly Mr Gavin Spring.

(10) The Council was entitled to serve on the respondents the order under s 124 of the Local Government Act 1993 (item 22 in the Table) because waste was present or generated on the premises and was not being dealt with satisfactorily, and was not regulated or controlled by, or subject to, a licence or notice granted or issued under the Protection of the Environment Operations Act 1997. The Council served such an order on the respondents on 1 October 2004. The respondents discontinued their class 2 appeal against that order on 8 April 2005.

(11) 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 (s 672(b)(ii)), enlivening the jurisdiction of this Court (s 673 of the Local Government Act 1993 [and see also s 20(1)(d) of the Land and Environment Court Act 1979]).

(12) Some works, however, were carried out subsequent to either the s 124 order or the interlocutory orders [which I will refer to as the “2005 works”]. The 2005 works primarily involved redirecting and then disconnecting the systems (capping pipework and the like). The 2005 works could be readily reversed and, absent final orders, the use of the premises could recommence.

(13) The premises were located in an environmentally sensitive area, near to Emigrant Creek and in an area of high water table.

(14) The premises ought not to be used unless and until satisfactory plumbing and drainage arrangements had been made. Final orders are required to ensure regularisation of the plumbing and drainage arrangements of both the southern and northern buildings on the premises prior to any use recommencing (particularly given that there was evidence of use or potential use of the showers and plumbing facilities by a not insignificant number of persons previously).

Makita (Australia) Pty Ltd v Sprowles

40 The respondents’ principal contentions may be summarised as follows:

(1) The works relating to the diversion of “greywater” (that is, wastewater not including human waste) to the absorption pits did not require any approval under the Local Government Act 1993. Such works were not “sewerage works” because they did not involve “human wastes” (“greywater” does not contain human wastes) or any septic tank, effluent or sullage disposal system. If the Council were correct, then (for example) councils would need an approval for all showers on the beach to wash sand off and the like and people could not wash their hands in a public place. This contention, I note, did not relate to the works involving the installation of the ship’s head toilet and holding tank to the northern building and ancillary pipework, or the installation of the toilet and urinal in the southern building and their connection to the existing holding tanks for that building.

(2) The respondents carried out the works relating to the diversion of “greywater” as a result of the Council forwarding to them the publication by NSW Health “Greywater Reuse in Sewered Single Domestic Premises” dated April 2000 (the “greywater policy”), with a covering handwritten note “Leanne, I realise this information is not exactly what you are looking for, but trust the more comprehensive info suits”. The works were in accordance with the greywater policy. The Council had provided that policy and the respondents had followed it.

(3) The Council had approved the works through the imposition of condition 6 on development consent 1996/93 (This consent relates to the northern building and authorised its use for a marine industry). Condition 6 states that all trade wastes, wastewaters and air impurities shall be contained and disposed of to the satisfaction of Council’s Health and Building Surveyor and Engineer. Such disposal of wastes and wastewaters may require the installation of appropriate waste containment systems, designed to the satisfaction of Council’s Health and Building Surveyor and Engineer.

(4) All of the works that had been carried out far exceeded the standards in the Local Government Act 1993 and regulations. If the holding tank for the northern structure was not presently accredited, the facilities were capable of being accredited. An elevated tank was far superior to an in ground tank system, particularly given the instability of the land in the locality.

(5) The system operated by separating all human waste streams from all other waste streams (that is, greywater). No approval was required to divert greywater into the absorption pits as greywater is not “sewage” as defined. As greywater is not sewage, that activity does not involve operating a system of sewage management. Again, I note that this contention did not relate to the works involving the installation of the ship’s head toilet and holding tank to the northern building and ancillary pipework or the installation of the toilet and urinal in the southern building and their connection to the existing holding tanks for that building.

(6) The absorption area for the southern building was in part located in the road reserve. The road reservation was wide and many other people had structures in the road reserve. The southern building was subject to a s 317A certificate which expressly stated that the Council would not require removal of the encroachments from the road reserve.

(7) The system saved water and operated to a standard that far exceeded the requirements of the Local Government Act 1993 and regulations. The ship’s head toilet arrangement would have been authorised on a boat, when such facilities on boats are subject to more onerous regulation than on the land. No one could complain if the same system was installed on a barge in Emigrant Creek. Also, the respondents sold those toilets (they run a marine industry) so it was reasonable for them to have a ship’s head toilet for demonstration. Wastewater on the premises was thus being dealt with satisfactorily and the order pursuant to item 22 of s 124 was unjustified.

(8) The inspections and tests carried out by Mr Spring were unfair and unsound. It had been raining heavily in the days leading up to that inspection and testing. Mr Spring, by his actions, had caused the system to fail. Mr Spring of the Council was biased against the respondents and motivated by malice. Even after Mr Spring had damaged the system, the greywater did not escape to Emigrant Creek but remained in the absorption area. Mr Spring’s references to odour from or at the premises were belated and affected by his bias against the respondents and the Council’s attempts to achieve a planning objective using its powers with respect to drainage. This was also shown by Mr Spring (repeatedly) going out of his way to inspect the premises without prior notice. Hence, wastewater was being managed (more than) satisfactorily on the premises.

(9) The Council’s actions in (repeatedly) inspecting the premises and serving the s 124 order were calculated to achieve an extraneous purpose – namely, to stymie the respondents’ proposals for redevelopment of the premises. The Council’s concerns with drainage arrangements were a pretext for the Council’s objectives that were related to planning, not drainage considerations.

(10) The respondents had complied with the s 124 order.

The operation of the statutory scheme

41 For the reason I gave in para 8, it is appropriate that I address the operation of the statutory scheme at the outset. I consider that the legislative scheme, insofar as it is relevant, may be summarised as follows.

Requirement for approval for works

42 Absent an exemption in a local policy adopted under Part 3 (there being no exemption in the Act or regulations), a person required approval from the Council under s 68 to carry out any “sewerage work”. The respondents claimed no exemption in a local policy.

43 “Sewerage work” means the construction, alteration, extension, disconnection, removal, ventilation, flushing or cleansing of any sewerage service pipes or fittings or fixtures communicating or intended to communicate, directly or indirectly, with: - (a) a septic tank, an effluent or a sullage disposal system, or (b) any sewer of a council, and includes work of sanitary plumbing and work of house drainage.

44 The installation of the ship’s head toilet and holding tank to the northern building and ancillary pipework and the installation of the toilet and urinal in the southern building and their connection to the existing holding tanks for that building was “sewerage work”. Those works required approval under s 68 of the Local Government Act 1993. The respondents’ contentions that their works did not require approval as “sewerage work” related only to the arrangements for the diversion of wastewater (“greywater”) to the sub-surface absorption areas/pits. I now address that issue.

45 The definition of “sewerage work” covers drainage (to use a neutral term at this stage) to both reticulated and non-reticulated systems of disposal. In both cases, “work of sanitary plumbing and work of house drainage” (which might otherwise have fallen outside the two classes of “sewerage work”) is expressly identified as falling within that definition. The use of the “means and includes” formula in the definition of “sewerage work” operates to “…specify as falling within the definition that which might otherwise have been in doubt” (see, for example, Hepples v Federal Commissioner of Taxation (1990) 94 ALR 81 at 101 per Gummow J). Relevantly, in this case, “house drainage”, is brought within the definition.

46 Although “sanitary plumbing” and “house drainage” are not defined in the Local Government Act 1993, “drain” is defined (a drain for the carrying off of waters other than sewage). “House drain”, “soil pipe” and “waste pipe” are each defined in the Local Government (Approvals) Regulation 1999. A “house drain” collects discharges from both “soil pipes” and “waste pipes”. “Soil pipes” collect discharges from human waste storage facilities (which involve holding or disposing of human waste – that is, human faeces and urine) or from operating theatres or morgues. In this context, “soil” must take the meaning of “filth” or “refuse”, such as in “nightsoil”. “Waste pipes” are all other pipes conveying discharges from fixtures (or operating theatres or morgues). In other words, a “house drain” collects both human waste and other liquid discharges from fixtures (whether or not human waste).

47 I consider that “house drainage” takes its ordinary meaning. According to any ordinary understanding of that term, it encompasses all of the various drainage streams associated with human residence, occupation and use, and is not limited to waste which includes human faeces and urine. This meaning accords with the overall scheme of the Local Government Act 1993 and the regulations to that Act (which apply across the State and thus across urban and non-urban areas, where it might be expected that large numbers of people may reside in proximity to one another).

48 The scheme of the Act and regulations thus (relevantly) required approval to be obtained to carry out work relating to human waste systems (systems dealing with human faeces and urine) and waste systems generally (systems dealing with all other discharges from fixtures associated with human habitation and use – such as showers, bathtubs, laundry tubs, kitchen sinks, sinks and the like). This operation of the statutory scheme does not depend on the meaning to be given to an effluent or a sullage disposal system, because “work of house drainage” is deemed to be included within the definition of “sewerage work”. That is to say, works of house drainage required approval under s 68 of the Local Government Act 1993. The installation in the southern building of the new showers and hand basin and the connection of those facilities to the sub-surface absorption area/pit adjacent to the southern building, and the installation of the basin and shower on the mezzanine level of the northern building and connection of those facilities, and the sink, to the sub-surface absorption area/pit adjacent to the northern building were works of “house drainage” and thus were “sewerage works”.

49 I consider this to be consistent with the meaning of the words “a septic tank, an effluent or a sullage disposal system” in the definition of “sewerage work”. I am satisfied that those words encompass works of the relevant kind directing discharges of all liquid waste (not just liquid waste containing human faeces and urine) from premises. I reach this conclusion for the following reasons:

(1) If the statutory scheme had intended that only works in connection with the removal of human waste required approval (or kitchen waste or washing machine wastewater – two items which the respondents may have been prepared to consider may require approval), and not the removal of wastewater from showers, bathtubs, showertubs and sinks, then that distinction ought to be apparent somewhere in the scheme. Instead, the scheme operates by distinguishing between sewerage works (in effect, the installation of facilities) and the operation of a sewage management system. Both require approval, but the considerations relevant to each are different.

(2) None of the key definitions are limited to the concept of human waste (or, for that matter, kitchen waste or washing machine wastewater).

(3) “Sewerage work” includes not only works connected with a septic tank, an effluent or a sullage disposal system, but also sanitary plumbing and house drainage (see above).

(4) “Sewage” is defined inclusively. The inclusive definition operates by reference not to “human waste” (a defined term), but by reference to sub-para (a) of the (expansive) definition of “waste” which includes effluent, being any matter or thing, whether solid or liquid or a combination of solids and liquids, which is of a kind that may be removed from a human waste storage facility, sullage pit or grease trap, or from any holding tank or other container forming part of or used in connection with a human waste storage facility, sullage pit or grease trap. If the legislature had intended to limit the meaning of “sewage” to “human waste”, then it could have used that defined term. It did not do so. I consider also that, construed in context, “effluent” and “sullage pit” take the meaning for which the Council contends (namely, that those terms are not to be limited to discharges containing human faeces and urine, but encompass all wastewater discharges from fixtures).

(5) Other indications of the intended reach of the statutory scheme are apparent in the definitions in the Local Government (Approvals) Regulation 1999 of “sewage of a domestic nature” (inclusively defined), “sewerage services” (see the reference to “sewage or permitted discharges”), “trade waste” (see the reference to “domestic sewage”), “house drain (see above) and “waste pipe” (see the reference to “discharges”). Taking into account these considerations is not (impermissibly) to construe the Local Government Act 1993 by reference to the regulations, but to recognise the intended operation of the statutory scheme.

(6) A primary purpose of the statutory scheme must be the protection of public health and safety and the environment. The phrase in sub-para (a) of the definition is used in distinction from work connecting to a Council sewer (regulated by sub-para (b)). All work within sub-para (b) requires approval (whether or not the discharge contains human waste). It makes little sense for connection of a shower or sink to the Council’s sewer to require approval, but connection of a shower or sink to a septic tank or to a re-use treatment area not to require approval. In that context, assuming that discharges may be directed from premises to the ground without approval (merely because the discharges do not contain human faeces and urine, kitchen waste or wastewater from a washing machine) is inconsistent with the scheme as a whole and with the fundamental purpose of protecting public health and safety and the environment.

(7) The respondents’ argument to the contrary based on the legislation :- (i) inappropriately focuses on the word “sewage” in isolation from the statutory context as a whole, (ii) reads that word in a manner restricted to “human waste” (which is itself inconsistent with the inclusive nature of the definition and with the broader concepts which appear in sub-para (a) of the definition of “waste”), and (iii) fails to appreciate the requirement for approval for both works (sewerage works) and operation (operate a sewage management facility).

(8) The respondent’s argument to the contrary based on the greywater policy, for the reasons given below, is misconceived. The policy (if it applied to the premises – which it does not) does not affect the requirements for approval set by the Local Government Act 1993.

Requirement for approval to operate a system of sewage management

50 The same considerations as I have set out above apply to the requirement for approval to operate a system of sewage management. At all relevant times, approval was required to operate such a system. Directing discharges of human wastes to septic tanks or holding tanks or related effluent application areas is to operate a system of sewage management. The respondents directed the new toilets and urinal described above to the tank systems on the premises. Use of those facilities was to operate a system of sewage management on the premises.

51 Use of the facilities directed discharges of wastewater not containing human wastes (from showers, baths, sinks) to the sub-surface absorption pits/areas on the premises which was also to operate a system of sewage management on the premises. This result necessarily follows from the matters I have set out in [48] and [49] above.

52 The actions of the respondents, whether those actions required approval (which I have in part addressed above) and whether such approvals were obtained, must be considered and determined in the legislative context that I have described above. As noted, that legislative context has in substance continued despite the repeal of the Local Government (Approvals) Regulation 1999. Its replacement, the Local Government (General) Regulation 2005 contains substantially similar provisions.

Findings

53 It is apparent from the above summary of the parties’ principal contentions that the disputes about primary facts are relatively limited. Those factual disputes mainly concern: - (i) the relevance of the greywater policy to the respondents’ actions, (ii) the operation of certain consents and approvals relating to the premises, in particular condition 6 of development consent 1996/93, (ii) the legitimacy of the Council’s purposes in serving the s 124 order, (iii) the attendances and inspection by Mr Spring, and whether Mr Spring was biased against the respondents or otherwise motivated by some illegitimate purpose (including malice), (iv) the compliance, adequacy and performance of the drainage arrangements on the premises (a matter which requires considering any approvals needed for both the installation of various facilities by the respondents and the operation of those facilities which are subject to separate approval requirements under the Local Government Act 1993) and, finally, (v) the need or otherwise for the making of final orders (if the Council establishes breach by the respondents).

54 I find as follows.

The premises

55 The premises are known as No’s 14–22 Smith Drive, West Ballina, being lot 1 DP 605260. The respondents own the premises and have done so since in or about 2000. They use the premises as part of a marine industry business known as Aero Marina Pty Ltd. The premises have a long frontage to Smith Drive to the west and Emigrant Creek to the east as shown on the survey plan DMK 2002-301. The survey also shows that the sealed part of Smith Drive is far narrower than the road reservation. To the east of the sealed bitumen surface is an area shown as shale on the survey which is at least as wide as the sealed surface. The survey also shows a shed on the southern end of the premises (which I call the southern building) and a shed at the northern end of the premises (which I call the northern building). The survey shows an encroachment by the southern building into the road reserve. Adjacent to that encroachment is a symbol designated “sand area”. The survey shows an open drain adjacent to the northern building connecting to Emigrant Creek.

56 Although the respondents raised some concern about the accuracy of the survey with respect to the boundary of the premises with Emigrant Creek (apparently, the respondents had been in dispute with the Crown Lands Department about that boundary) and the “sand area”, I accept the survey as accurate for all purposes relevant to my determination of the class 4 proceedings.

57 Smith Drive and the premises are located in an industrial zoning under the applicable environmental planning instrument. The premises are not serviced by the Council reticulated sewerage system.

58 The premises are within 100 metres (in fact abut) Emigrant Creek. The premises are located in an area with a high water table, the water table being between 600mm and 1.5 metres below the surface.

59 The southern and northern buildings existed on the premises in some form prior to the respondents’ purchase of the premises in or about 2000.

The southern building – consents and approvals

60 In 1979, the Council approved a building application, subject to conditions, relating to the southern and northern buildings. That approval described the existing southern building as a factory with a ground and first floor and approved additions to the factory and a new shed for the northern building. The specification, which was stamped as part of the approval, referred to all sewerage and wastewater drainage works being carried out in accordance with the (then) Local Government Act (that is, the 1919 Act).

61 On 23 December 1986, the Council granted development consent relating to the southern building to “convert a section of an existing industrial building for the purpose of a caretaker’s residence”, subject to conditions. The encroachment of the southern building into the road reserve is shown on a survey sketch from this time. The documents accompanying the development application state that the southern building “has a pump-out waste disposal system”.

62 On 6 March 1987, the Council approved a building application, subject to conditions, relating to the conversion of part of the southern building into the caretaker’s residence”, subject to conditions. The plans approved by that application show a kitchen, dining room with a sink, living room and a bedroom upstairs and a shower, toilet and laundry downstairs.

63 A pump out facility, comprising two tanks and relevant pipework and connections, services the southern building. Although the Council’s records system did not contain any approval for that pump out system, Mr Plumb of the Council (an experienced environmental health officer and a health inspector with 30 years experience, who holds tertiary qualifications in environmental health science) was satisfied that that part of the system was operating satisfactorily as at 20 September 2005. I accept that opinion of Mr Plumb.

64 The Council raises no particular issue (and seeks no orders) with respect to the plumbing and drainage facilities and fixtures within the southern building, although those fixtures and fittings do not accord with the approved plans which the Council’s record keeping system has disclosed.

65 Insofar as the southern building is concerned, the focus of the Council’s attention is the existence and use of the absorption pits adjacent to the southern building, which in part are located on the road reserve. Although, as I explain below, the premises are not presently being used and the connections in question have been capped, a number of the facilities in the southern building drained to these absorption pits. If reconnected, the facilities would still so drain. The principal facilities connected to the absorption pits are the shower and laundry tub in the downstairs section of the southern building (there was some dispute about the draining of a urinal to the absorption area. Mr Jacobson said that in or about 2000, he redirected the drainage from the urinal and the kitchen into the tanks, which I accept. Nevertheless, having regard to the opinions of Mr Spring and Mr Alderson, I also find that, with minor works, those facilities could be redirected to the absorption pits).

The northern building – consents and approvals

66 The northern building is a smaller structure than the southern building. The 1979 building approval shows the northern building as a galvanised iron shed on a concrete slab.

67 On 23 November 1995, the Council granted development consent to use the northern building for marine industry (involving the repair and renovation of boats; sales and storage), subject to conditions. One of the conditions relied upon by the respondents is condition 6, which provides that:

All trade wastes, wastewaters and air impurities shall be contained and disposed of to the satisfaction of Council’s Health and Building Surveyor and Engineer. Such disposal of wastes and wastewaters may require the installation of appropriate waste containment systems, designed to the satisfaction of Council’s Health and Building Surveyor and Engineer.

68 The development application form relating to the 23 November 1995 consent states in part “the existing vacant building to have an approved pump out toilet system installed”. I do not consider that statement to form a condition of the consent (based upon the principles set out in Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 and 323 – 324 per Else-Mitchell J, Parramatta City Council v Shell Co of Australia Limited [1972] 2 NSWLR 632 at 637 per Hope JA, Auburn Municipal Council v Szabo (1988) 67 LGERA 423 at 433 to 434 per Hope J, Sydney Serviced Apartments v North Sydney Municipal Council [No 2] (1993) 78 LGERA 404 at 407 – 408 per Handley JA, Hubertus Schuetzenverein Liverpool Rifle Club Limited v Commonwealth of Australia (1994) 51 FCR 213; 85 LGRA 37 at 43 to 46 per Wilcox J, and Woolworths Limited v Campbell’s Cash and Carry Pty Ltd (1996) 92 LGRA 244 at 249, 251 per Sheller and Cole JJA respectively). The relevant condition is condition 6 quoted above.

69 On or about 11 December 1995, the then owner of the premises lodged an application to install a septic tank relating to the northern building. The application refers to the connection of one hand basin, a WC with a certain flush capacity, a septic tank of 2050 litres capacity and a collection well of 2050 litres capacity. The Council approved the application on 2 January 1996, subject to conditions (including conditions requiring that the collection well be fitted with float switches connected to an audible and visual alarm system). This approved pump out system has not been constructed with respect to the northern building. The Council contends that this approval has lapsed (which the respondents dispute), but I do not need to resolve that issue.

70 The northern building includes a mezzanine level that the Council contends has not been approved. The Council, however, seeks no orders with respect to the presence of that level in these proceedings. That level has within it a ship’s head toilet, a shower and wash-basin. There is another sink on the ground floor level. The northern building is serviced by a single tank of about 1100 litres capacity. The tank is elevated and has connected into it a grey hose. The outlet to this tank is situated approximately 3.2 metres from an open tidal drain leading to Emigrant Creek. Prior to certain works carried out by the respondents in 2005, the sink on the ground floor, the shower and wash-basin on the mezzanine level drained to a rubble absorption pit near the northern building. The ship’s head toilet drained to the tank. In 2005, the respondents caused works to be carried out whereby the basin and shower were connected to the tank rather than the rubble absorption pit. By September 2005, the sink on the ground floor drained into a bucket.

The respondents

71 The respondents own the premises and are in a domestic relationship. Mr Jacobson gave evidence that he was primarily responsible for making decisions with respect to the premises (which I accept). I am satisfied, however, that the respondent Ms McMillan, by reason of the facts of joint ownership, the circumstances of her relationship with Mr Jacobson, her presence at the premises at various times, and her actions during inspections by Council officers, was aware of and participated in causing the works at the premises (described below) to be carried out. As such, I draw no distinction between the respondents in these reasons.

The 2002 works were all “sewerage works”

72 Mr Jacobson gave evidence in the proceedings, by way of affidavits (which were read) and orally. In cross-examination, Mr Jacobson said that he had carried out or caused to be carried out works to both the southern and the northern buildings between 2000 and 2002.

73 Mr Jacobson said that he had improved both buildings, making them “first class” facilities. I am satisfied that the works the respondents carried out or caused to be carried out between 2000 and 2002 included:

(1) To the southern building: - (i) removal of the plumbing facilities from the upstairs, installing new facilities including a shower and shower tub, a toilet, urinal and hand basin, and connection of those facilities to the sub-surface absorption area/pit adjacent to the southern building which is located in part on the road reserve, and (ii) installation of a new shower and wall in the downstairs section; and

The use of the 2002 works

74 Although the operation of these facilities varied over time, I am satisfied that, prior to the works in 2005:

(1) The southern building’s showers, urinal and hand basin drained to the absorption area/pit. The respondents altered that drainage in 2002 so that the urinal drained to the septic tank system. Otherwise, those facilities continued to drain to the absorption area/pit until the use ceased pursuant to the interlocutory orders. The toilet drained to the septic tank system (that is, the two tanks near the southern building which have a capacity of about 2050 litres each).

75 I am not prepared to draw an inference that the respondents constructed or caused to be constructed the absorption area/pit to the southern building or the absorption area/pit to the northern building. The respondents, however, used and caused to be used those facilities as part of their operation of a system of sewage management on the premises.

The 2002 works required approval

76 I am satisfied that all of the works carried out or caused to be carried out by the respondents (see [73] above) required approval under s 68 of the Local Government Act 1993, there being no exemption from that requirement. The works required approval as the carrying out of “sewerage works” (the Table to s 68, Part B, item 4) and, in part (that is, the works relating to the toilets and urinal), as the installation, construction or alteration of a waste treatment device or a human waste storage facility or a drain connected to any such device or facility (the Table to s 68, Part C, item 5).

The operation of the 2002 works required approval

77 I am satisfied that the operation of all of the 2002 works (that is, their use as described in [74] above) required approval as the operation of a system of sewage management (the Table to s 68, Part F, item 10 and clause 45 of the Local Government (Approvals) Regulation 1999 and/or s 68A of the Local Government Act 1993). That is, I am satisfied that approval was required to direct human faeces and urine from the toilets and urinal to the various holding tanks, and to direct wastewater from the fixtures within the southern and northern buildings (whether or not that wastewater contained any human faeces and urine) to the sub-surface absorption areas adjacent to the southern and northern buildings.

Use of the premises prior to cessation pursuant to interlocutory orders

78 I am satisfied that the respondents used or caused to be used the premises as part of a marine industry business which they run, known as Aero Marina Pty Ltd. The precise intensity of use of the premises (prior to its cessation consequent upon the interlocutory orders), however, is not clear.

79 I am satisfied that two people occupied the caretaker’s flat in the southern building for residential purposes at various times. At least one other person, perhaps more, used the shower and basin facilities in the downstairs section of the southern building. This person appears to have lived on a boat moored off the premises, but used the downstairs shower facilities. Their connection, if any, to the marine industry business is not apparent.

80 The respondents used or caused the use of the northern building for marine industry purposes (although the number of people involved in that activity is not apparent). The northern building has a mezzanine level. Mr Jacobson referred to that level as “the studio”, which suggests that that level may have been used for some form of accommodation, but I am not able to make a finding to that effect.

81 At various times, however, up to 14 or 18 boats were moored off the premises, with 4 or 6 boats in dry dock on the premises and perhaps 30 boats in total being present (on or moored off the premises) at any time. I am satisfied that there was (and if use of the premises re-commences, is) real potential for the sanitary facilities at the premises to be used by persons other than those living or working in the buildings.

The greywater policy

82 I consider that the greywater policy is of limited, if any, relevance to the question whether the 2002 works carried out or caused to be carried out by the respondents and the operation of those works required approval. If anything, the policy discloses why approval would be required for all components of the 2002 works and their operation. In particular, the policy explains that greywater (in summary, wastewater from all household facilities which does not contain human waste) has a high potential to contain pathogenic micro-organisms which may be potentially infectious and polluting. (I note, moreover, that greywater is referred to at page 2 of the policy as “sullage”).

83 The policy distinguishes between greywater excluding kitchen waste and greywater including kitchen waste. The latter is likely to contain higher levels of micro-organisms than the former. The policy applies only to single domestic premises in a sewered area. The subject premises are not single domestic premises and are not in a sewered area. Hence, the policy is inapplicable to the premises.

84 The policy refers to greywater diversion devices (which do not treat greywater) and domestic greywater treatment systems (which treat greywater). There was debate in this case as to whether the arrangements at the premises involved a greywater diversion device. I consider that debate immaterial for a number of reasons. First, the greywater policy does not apply to the premises. Secondly, the greywater policy has no statutory force or effect. Thirdly, nothing in the greywater policy suggests any exemption from any approval requirement. There is a table of approvals required on page 13 of the policy. That table does not replace the provisions of the Local Government Act 1993 and has no effect on those provisions. Moreover, the table shows, if anything, that approval is required to operate a greywater diversion device but not to install such a device (on the narrow definition of such a device adopted in that policy – in effect, a switch which operates by gravity or pump).

85 I cannot see anything in the greywater policy suggesting that, where the policy applies, it provides an exemption from any approval requirement. If the works carried out or caused to be carried out by the respondents were intended to respond to the policy, then the requirement to obtain approvals from the Council for the 2002 works ought to have been plain to the respondents. Equally, the risks to the environment and public health associated with draining greywater from showers and sinks and the like to absorption areas in the ground, in close proximity to Emigrant Creek in an area with a high water table, ought to have been plain to the respondents. This is particularly so given that the policy makes clear that the characteristics of greywater (unsurprisingly) alter depending upon the characteristics of use by occupants.

86 Nothing in the greywater policy or the circumstances in which the Council provided it to the respondents (that is, the reference to the handwritten note on the policy which I accept to be from a Council officer) required the respondents to carry out the 2002 works, or gave any approval (tacit or express) to those works. The respondents may have elected to rely on the greywater policy, but that reliance was a choice by the respondents (not a requirement of the Council). Any belief that the respondents held that the greywater policy exempted them from the Local Government Act 1993 approval requirements was in error (particularly when it is recognised that the policy does not apply to the premises and does not operate so as to exempt any person from any requirement for approval). As such, I consider the issue that was the focus of much of the respondents’ evidence and submissions (that is, whether they had installed greywater diversion devices on the premises) to be beside the point. The point is that the respondents installed or caused to be installed the sewerage works I identified above and operated those works.

87 The greywater policy, at best, is relevant to the intentions of the respondents in carrying out the 2002 works. Intention, however, is not relevant to the question of breach of s 68 (or s 68A). Breach is established by reference to the facts objectively ascertained and not by reference to the respondents’ intentions.

Mr Alderson’s evidence relevant to the issue of breach

88 Mr Alderson is a chartered professional engineer (civil) with substantial experience in local government and wastewater engineering and management. Nothing in the evidence of Mr Alderson about the greywater policy affects the conclusions that I have reached above. Indeed, Mr Alderson agreed in cross-examination that the greywater policy did not apply to the premises. Hence, his opinion that the systems involved a greywater diversion device is beside the point.

89 Mr Alderson’s evidence was otherwise directed to the capacity, adequacy and performance of the systems and the capacity for the elevated tank to the northern building to be accredited. Those matters are not material to the issue of breach.

Did the 2002 works and their use require and have approval?

90 For the reasons I have given above, the carrying out of the 2002 works by the respondents required approval under s 68 of the Local Government Act 1993 (the Table to s 68, Part B, item 4 and Part C, item 5). The use of those works also involved the operation of a system of sewage management that required approval under the Local Government Act 1993 (the Table to s 68 Part F, item 10, and clause 45 of the Local Government (Approvals) Regulation 1999 and/or s 68A of the Local Government Act 1993). The next issue is whether the respondents had approval to carry out and use those works.

91 The respondents relied upon condition 6 of the 23 November 1995 consent as an approval for the carrying out and operation of the works. I consider that reliance to be misplaced.

92 Condition 6 of the 23 November 1995 consent was not an approval to carry out any of the 2002 works or to operate a system of sewage management.

93 First, the consent relates to the northern building and not the southern building.

94 Secondly, condition 6 required the works to be to the satisfaction of the Council’s Health and Building Surveyor and Engineer. There is no evidence of that satisfaction. The evidence of Mr Plumb and Mr Spring was to the contrary. Mr Plumb is an Environmental Health Officer of the Council. Mr Plumb was not satisfied with respect to the waste containment systems other than the arrangement in the southern building under which the toilet drained to the septic tank system. Mr Plumb was otherwise dissatisfied with the wastewater arrangements on the premises. He identified three significant risks associated with the arrangements in the southern building ((i) a significant risk of people using the shower being directly exposed to contaminants by the system surcharging, (ii) significant dangers to users of Smith Drive where the waste water is also surcharging, which Mr Plumb described as equivalent to “the throwing of slops into public roads as occurred in the nineteenth century”, and, finally, (iii) entry of pathogens into receiving waters, Emigrant Creek, which is tidal, and which forms part of the Richmond River Estuary where oyster growing occurs). As explained below, I find Mr Plumb to be a credible and careful expert with many years of specialised experience and qualifications.

95 Thirdly, nothing in condition 6 suggests that the condition has the effect of waiving any requirement to obtain the approvals required for wastewater systems and operation. That is, if works had to be carried out to comply with the condition, and that work required approval, nothing in the condition waived the requirement to obtain that approval.

96 I also consider that the respondents’ submission that the ship’s head toilet is a “demonstration model” ancillary to the marine industry use (and thus, presumably, did not require approval) should not be accepted. First, the toilet was not a demonstration model; it was connected to the elevated holding tank and the mains water supply, and, I infer, was used as an ordinary toilet facility in the northern building. Secondly, in order to demonstrate a toilet model, it need only be shown, not connected. Thirdly, even if a demonstration model, all toilets that are installed were required to comply with the Local Government (Approvals) Regulation 1999 (now the Local Government (General) Regulation 2005). The ship’s head toilet does not comply with certain basic requirements of that regulation. Finally, this argument came late in the day in submissions and not in any part of the respondent’s evidence.

143 It should be apparent that, insofar as the Alderson report is to the effect that the drainage and sewage arrangements on the premises accord with condition 6 of the 23 November 1995 consent, I do not accept Mr Alderson’s opinion (I have addressed condition 6 in detail above). I also do not accept the opinions expressed by Mr Alderson that the terms of the development application authorised the sewage and drainage arrangements on the premises. In cross-examination, Mr Alderson withdrew his statement that the Council had approved the absorption pits servicing both the southern and northern buildings. He also agreed that it was a basic requirement that any on site absorption trenches or pits be located within the premises and not on the road reserve.

144 As such, I do not accept Mr Alderson’s primary relevant conclusions in that report – namely:

A. The pumpout facilities at 14 and 22 Smith Street Ballina are Council Approved as part of the Development Consents for the Land use. Both comply with the Principles of Greywater Reuse forwarded to the land owners by Ballina Shire Council. Both the absorption fields only receive Greywater from showers and hand basins and are GDD as per the Principles of Greywater Reuse.

B. There is no data from Council as to the pollution of the environment from the Systems from the subject land uses on the site.

145 Mr Plumb also gave evidence to the contrary of both these conclusions. I accept Mr Plumb’s evidence in this regard which accords with the conclusions I have reached above (for other reasons).

146 Insofar as it is relevant, I do not accept Mr Alderson’s observation in para C of his conclusion that the absorption field on the road reserve was included within the s 317A certificate issued by the Council on 5 September 1986. The encroachments on the road reserve are referred to at the foot of the certificate, but the certificate makes plain that it does not cover encroachments on the road reserve.

147 I found Mr Alderson’s oral evidence of greater assistance than his report. Mr Alderson agreed that: - (i) the greywater policy did not apply to the premises, (ii) the policy did not require the respondents to carry out the works they had carried out, (iii) the ship’s head toilet in the northern building did not meet the requirements of the Plumbing and Drainage Code of Practice, (iv) the sewage and drainage arrangements for the northern building were not those approved by the Council on 2 January 1996, (v) septic tanks had to comply with applicable Australian Standards, and that the tank to the northern building was required to be accredited, (vi) the tank for the northern building was not accredited (but he thought it was capable of being accredited).

148 Mr Alderson said that the appropriateness of the arrangements for sewage management would vary depending on the number of people using the facilities. He considered that two tanks of about 2050 litres capacity each would be “barely adequate” for ordinary domestic use by a single family (but at the lower end of the size which might be acceptable), and that he would recommend a higher capacity if there were more users (as an indication of the sensitivity of this criterion, Mr Alderson expressed the opinion that two tanks of 2050 litres each would be insufficient for use by 5 people in ordinary domestic circumstances). He agreed that the size of the elevated tank to the northern building (of about 1100 to 1200 litres) may or may not be adequate depending on the number of users. He agreed that while he thought that tank could be adequately sized to deal with a couple of people using it during normal business hours, that opinion would change if the use were different. He agreed that the caretaker’s flat in the southern building, under the Building Code of Australia, required cooking and laundry facilities (wastewater from which, I infer, might be of a lesser quality than certain other classes of wastewater). I accept that evidence.

149 Mr Alderson also said that the premises were within 100 metres of Emigrant Creek, within an area of high water table and that, in his opinion, whether or not all wastewater ought to be pumped into the tanks depended on the quality of the wastewater. With respect to the northern building, Mr Alderson agreed that he was aware of chemicals being used in that building and that these chemicals could easily escape from the sink into the absorption pit. He agreed that such a situation was not ideal.

150 Mr Alderson agreed that the disconnected services could be brought back into use with some works carried out to them. This is relevant to the question of the appropriateness of the making of final orders, which I address below.

151 I consider particularly relevant the question and answer relating to the use of absorption pits (or, as Mr Alderson prefers, sub-surface irrigation) in high water table areas, as follows:

Q. You’d also agree with me, would you not, that in respect of the subject premises the high water table would be a reason why such a thing ought not to be approved?

A. No I wouldn’t agree with that necessarily. We’ve got to be a little bit careful here in that we’re talking different timeframes and our awareness of the consequences of some of these things has changed so absorption pits, trenches, whichever is the appropriate name for what’s there at the moment, would have been approved by council in high watertable areas up until probably as late as say 10 years or even five years ago. It’s only been in recent times that council’s consultants and the whole industry has recognised that high watertable requires a higher form of treatment. It’s not the disposal that’s the problem, it’s the level of treatment.

152 I consider this evidence significant because I infer from all of the evidence that the “greywater” which was being discharged to the absorption pits from both buildings on the premises was untreated. In this context, it is also material that Mr Alderson agreed that the premises were located in an “environmentally sensitive area” as referred to in the Local Government (Approvals) Regulation 1999.

153 In summary, I consider that Mr Alderson’s evidence, at its highest, is to the effect that the facilities (other than the ship’s head toilet) might or might not have been capable of approval and functioning adequately depending upon: - (i) the quality of the wastewater produced from the buildings (which I infer was untreated wastewater and about which no information is available other than the generalisations in the greywater policy which suggest that greywater may contain significant levels of contaminants harmful to human health depending on the source of the greywater), and (ii) the number of people using the buildings (about which the evidence is also far from clear save to say that I have accepted that there is a real potential for use to have occurred exceeding the levels anticipated by Mr Alderson as within the capacity of the systems for both buildings). Further, that over the last 5 to 10 years or so, a much greater focus on greywater quality has taken place, particularly in high water table areas.

154 I consider that the evidence of Mr Alderson which I accept discloses the serious inadequacies and potential significant environmental and health risks consequent upon: - (i) the sewerage works carried out by the respondents, (ii) the operation of those works (caused by the respondents) as a system of sewage management, and (iii) the respondents’ failure to comply with the s 124 order in accordance with its terms and in a timely manner.

Mr Jacobson’s contentions on the management of wastewater on the premises

155 Mr Jacobson held the opinion and submitted that the facilities at the premises were far superior to the requirements of the legislation, and would meet or exceed standards applicable on the waterway which were more stringent than those applying to land. Insofar as these opinions could be relevant, I do not accept them for the reasons I have given above. They are inconsistent with the opinions of Mr Spring and Mr Plumb, whose evidence I accept.

156 I find that the management of wastewater at the premises, prior to the cessation of use of the premises, was highly unsatisfactory and gave rise to a potential for serious harm to both people and the environment for the three reasons identified by Mr Plumb. As noted above, I refused to admit as to the truth of its contents a note dated 16 June 2004 and written by Mr Jacobson recording what were said to be opinions of a Mr Trout (apparently, a plumber or wastewater engineer) to the effect that the wastewater management facilities on the premises were “acceptable and not failed”. Had I admitted that evidence as representing Mr Trout’s opinion, I would not have accepted that evidence for the same reasons that I do not accept Mr Jacobson’s opinions and submissions.

Conclusions

157 For the reasons I have given, I am satisfied that the respondents carried out “sewerage works” within the meaning of s 68 without approval, operated a system of sewage management (within the meaning of s 68 (Part F of the Table, item 10) and clause 45 or s 68A) without approval, and failed to comply with an order given under s 124, all in breach of the Local Government Act 1993.

158 Section 676(1) of the Local Government Act 1993 provides that the Court may make such order as it thinks fit to remedy or restrain a breach of the Act. The terms of this section are similar to s 124(1) of the Environmental Planning and Assessment Act 1979, which vests a wide discretion in the Court (Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339).

159 I consider that, although the premises are not presently used (due to the terms of the interlocutory orders made by this Court), there continue to be threatened breaches of the Local Government Act 1993. The facilities at the premises can readily be reconnected and again used in the same manner as they were used prior to the interlocutory orders. I consider that it is relevant to the question of threatened breach that: - (i) the respondents diverted the untreated wastewater from the buildings (except from toilets) to sub-surface absorption areas/pits in a high water table area and adjacent to Emigrant Creek, absent any approval from the Council or apparent appreciation of the potential risks to human health and the environment associated with that action, (ii) the respondents installed the ship’s head toilet and the northern holding tank, and associated pipework and connections, when both facilities were unable to be approved under the Local Government Act 1993, (iii) the respondents sought to defend these proceedings on grounds (for example, that the wastewater management arrangements at the premises far exceeded the statutory requirements) which I consider demonstrate serious misconceptions, not only about the requirements of the legislation, but also about the potential risks to human health and the environment associated with the discharge of untreated wastewater in the circumstances of this matter.

160 There is no evidence from which I can infer that there would have been any practical difficulty in the respondents complying with the substance of the s 124 order. Indeed, Mr Spring said that the total cost of compliance with that order would have been in the order of $6000. Whether or not that figure is accurate, I accept that it indicates that the likely costs of compliance with the s 124 order, and the legislation, are not prohibitive. I have rejected the reason given by Mr Jacobson for the respondents not complying with the s 124 order in accordance with its terms and time requirements. Equally, I can see no practical difficulty which would preclude or make it inappropriate for the respondents to carry out the works which I require in the orders I propose to make.

161 The premises (although they contain a caretaker’s flat) are in an industrial zone. The uses of the premises ceased some time ago, pursuant to the Court’s interlocutory orders because the respondents considered the benefits from use to be outweighed by the burdens of the daily pump out requirement contained in those orders. The respondents have not pointed to any particular hardship which would be caused by continuing the restraint on use of the premises, unless and until certain works are carried out to ensure that adequate wastewater management arrangements are in place (although I accept that there is hardship, financial and otherwise, likely to be inherent in an order restraining use). I consider that the potential risks to human health and the environment (if the use of the premises re-commenced absent the necessary rectification works) substantially outweigh any such hardship.

162 Accordingly, I am satisfied that the discretionary factors in this matter are overwhelmingly in favour of the making of final orders against the respondents. The Council brings proceedings to enforce some of the most basic public health requirements of the Local Government Act 1993. Compliance with these laws is of central importance to civilised society, the maintenance of public health and the protection of the environment.

163 In summary, use of the existing sewage management facilities on the premises would place at significant risk the health of those using the facilities, the road reserve and Emigrant Creek, as well as the ecosystem of Emigrant Creek and persons using that and connected waterways for recreational and oyster growing purposes. These risks are serious and unacceptable. Orders should be made to ensure that the threatened breaches of the Local Government Act 1993 are restrained and, insofar as possible, that the consequences of the breaches which have occurred,are rectified.

Orders

164 I consider that orders to the effect set out in annexure “A” should be made. I propose to give the parties leave to be heard on the form of those orders (including any further details that should be specified in order (2)) and the time periods for compliance contained therein. As the effect of the orders will be to require certain plumbing works to be carried out (if the use of the premises is to re-commence for any purpose), it is appropriate that the works comply with the currently applicable requirements of the Local Government Act 1993 and the Local Government (General) Regulation 2005. Alternatively, the orders permit use of the premises if the respondents obtain approvals under s 68 and s 68A of the Local Government Act 1993.

****************************
ANNEXURE “A”

PROPOSED 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:

Southern building

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 [further details to be provided].

(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.

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

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.

Northern building

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 southern 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

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 All exhibits are returned to the parties.

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

18 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

Actions

Download as PDF Download as Word Document

Citations

Ballina Shire Council v Jacobson and McMillan [2006] NSWLEC 135

Most Recent Citation

BP Australia Pty Ltd v Roads and Traffic Authority of NSW [2006] NSWLEC 147

Cases Citing This Decision

3

Ballina Shire Council v Stubberfield [2006] NSWLEC 324

BP Australia Pty Ltd v Roads and Traffic Authority of NSW [2006] NSWLEC 147

Jacobson & McMillan v Ballina Shire Council [2006] NSWLEC 375

Cases Cited

11

Statutory Material Cited

8

Hepples v Federal Commissioner of Taxation [1990] FCA 296

TVW Enterprises Ltd v Duffy, M.J. [1985] FCA 109

Auburn Municipal Council v Szabo [2006] NSWCA 273

CITATION:	Ballina Shire Council v Jacobson & McMillan [2006] NSWLEC 135
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:	Land and Environment Court Act 1979 s 20(1)(d) Local Government Act 1993 s67, s 68, s 68A, s 89, s 124, s 180(1), s 192, s 193, s 672, s 673, s 674(1), s 676, s 710, s 748(1) Local Government (Amendment) Miscellaneous Act 2002 Local Government (Approvals) Amendment (Plumbing and Drainage Code of Practice) Regulation 2004 Local Government (Approvals) Regulation 1999 Pt 3, Sch 2, cl 8, cl 13, cl 15, cl 16, cl 20, cl 25, cl 28, cl 31, cl 38, cl 42, cl, 43, cl 44, cl 45, cl 46, cl 47, Pt 4 Local Government (General) Regulation 2005 Local Government (Water Services) Regulation 1999 cl 20 Protection of the Environment Operations Act 1997
CASES CITED:	Auburn Municipal Council v Szabo (1988) 67 LGERA 423; Barak v WTH Pty Ltd t/as Avis Australia [2002] NSWSC 649; Commonwealth Development Bank of Australia Pty Ltd Another v Cassegrain [2002] NSWSC 980; Hepples v Federal Commissioner of Taxation (1990) 94 ALR 81; Hubertus Schuetzenverein Liverpool Rifle Club Limited v Commonwealth of Australia (1994) 51 FCR 213; 85 LGRA 37; Jermen v Shell Co Australia Limited [2003] NSWSC 1106; Langbourne v State Rail Authority [2003] NSWSC 537; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Parramatta City Council v Shell Co of Australia Limited [1972] 2 NSWLR 632; Portal Software v Bodsworth [2005] NSWSC 1228; Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321; Sydney Serviced Apartments v North Sydney Municipal Council [No 2] (1993) 78 LGERA 404; United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339; Woolworths Limited v Campbell’s Cash and Carry Pty Ltd (1996) 92 LGRA 244
DATES OF HEARING:	17/02/2006, 20/02/2006, 21/02/2006, 22/02/2006
DATE OF JUDGMENT:	03/29/2006
LEGAL REPRESENTATIVES:	APPLICANT M Stevens SOLICITORS W J Grace & Co RESPONDENTS C Jacobson & L McMillan (in person)