BIOMAX PTY LTD and CITY OF SWAN
[2007] WASAT 13
•22 JANUARY 2007
BIOMAX PTY LTD and CITY OF SWAN [2007] WASAT 13
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 13 | |
| HEALTH ACT 1911 (WA) | |||
| Case No: | CC:1280/2006 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS J HAWKINS (MEMBER) | 21/01/07 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application successful Decision of City of Swan set aside | ||
| B | |||
| PDF Version |
| Parties: | BIOMAX PTY LTD CITY OF SWAN |
Catchwords: | Location of aerobic treatment unit Non-compliance with Code of Practice Decision invalid and set aside |
Legislation: | Health Act 1911 (WA), s 3, s 26, s 36, s 36(1) Health (Treatment of Sewerage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA), reg 3, reg 6A, reg 7A, reg 10, reg 10(3) State Administrative Tribunal Act 2004 (WA), s 27(1), s 29, s 29(1), s 29(3), s 45, s 60(2) |
Case References: | Nil Nil |
Orders | On the application determined by Member Jennifer Hawkins on 22 January 2007, pursuant to s 29 of the State Administrative Tribunal Act 2004 (WA), it is ordered that:,1. The decision of the City of Swan set out in its letter dated 10 July 2006 be set aside. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : HEALTH ACT 1911 (WA) CITATION : BIOMAX PTY LTD and CITY OF SWAN [2007] WASAT 13 MEMBER : MS J HAWKINS (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 22 JANUARY 2007 FILE NO/S : CC 1280 of 2006 BETWEEN : BIOMAX PTY LTD
- Applicant
AND
CITY OF SWAN
Respondent
Catchwords:
Location of aerobic treatment unit - Non-compliance with Code of Practice - Decision invalid and set aside
Legislation:
Health Act 1911 (WA), s 3, s 26, s 36, s 36(1)
Health (Treatment of Sewerage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA), reg 3, reg 6A, reg 7A, reg 10, reg 10(3)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 29, s 29(1), s 29(3), s 45, s 60(2)
(Page 2)
Result:
Application successful
Decision of City of Swan set aside
Category: B
Representation:
Counsel:
Applicant : Mr CN Durrant (Acting as Agent)
Respondent : Mr D Cook (Acting as Agent)
Solicitors:
Applicant : N/A
Respondent : City of Swan
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 Biomax Pty Ltd installed an aerobic treatment unit at No 754 Great Northern Highway, Herne Hill. Upon final inspection, the City of Swan found the aerobic treatment unit to have been installed 900 millimetres from the boundary rather than 1200 millimetres, as referred to in the Code of Practice for the Design, Manufacture, Installation and Operation of Aerobic Treatment Units (Nov 2001).
2 The City of Swan issued a letter to Biomax Pty Ltd requiring them to either relocate the aerobic treatment unit or provide an engineer's report that certified the current location of the aerobic treatment unit would structurally withstand any current or future structures on neighbouring properties. Biomax Pty Ltd provided an engineering report, but the City of Swan did not consider the report provided the necessary certification.
3 Biomax Pty Ltd sought a review of the City of Swan's decision as set out in its letter.
4 The Tribunal considered the statutory provisions relating to the making of decisions concerning non-conforming sewerage treatment apparatus. It concluded that the City of Swan's decision should have been directed to the owner of the relevant premises. On this basis, the decision (being advice of corrective action given to Biomax Pty Ltd) was set aside.
Background
5 This is an application under s 36(1) of the Health Act 1911 (WA) (Health Act) for a review of a decision of the City of Swan (City) in respect of the installation by Biomax Pty Ltd (Biomax) of an aerobic treatment unit (ATU) at No 754 Great Northern Highway, Herne Hill (subject premises).
6 Biomax installed the ATU in or about June 2006. Upon the installation, Biomax provided to the City a certificate confirming installation of the ATU. As a result, the City carried out final inspection of the ATU for the purpose of issuing a permit to use the ATU.
7 Following the inspection, the City issued a letter to Biomax dated 10 July 2006. The letter noted that the ATU was located 900 millimetres from the side boundary of the neighbouring property, and that, under the Code of Practice for Design, Manufacture, Installation and Operation of Aerobic Treatment Units (Code of Practice), a setback of 1200 millimetres
(Page 4)
- from the ATU to a property boundary was required. The letter suggested that having the ATU too close to the neighbouring boundary may give rise to structural implications for any new structures built on the neighbouring property.
City's decision
8 The letter advised Biomax that a permit to use the ATU would be issued only if one of the following had occurred:
• the ATU be relocated so that the prescribed setback was achieved; or
• certification be provided from a suitably qualified structural engineer that the current installation did not compromise the structural integrity of existing or future buildings on the neighbouring property.
9 It is agreed that the City's decision constituted a decision of a local government under the Health Act amenable to review by the Tribunal under s 36(1).
10 Biomax filed an application to review the City's decision on 23 August 2006. In its application, it stated that the decision sought from the Tribunal was as follows:
"Biomax Pty Ltd requests that SAT review the local authority's adverse decision regarding the installation of a Biomax (model C10) ATU located at 754 Great Northern Highway, Herne Hill. The guidelines set down that any ATU should be set back 1200 millimetres from property borders; the Biomax ATU that is being installed at this property has been set back 900 millimetres (the difference of 300 millimetres) due to very difficult site conditions including rising groundwater, pit cave ins, tight site access and general mechanical limitations. We therefore request that SAT support our application and review the adverse decision regarding this installation."
11 This matter was the subject of a directions hearing on 14 September 2006, at which time it was ordered that the matter be adjourned to 5 October 2006 to enable Biomax to obtain certification from a suitably qualified engineer. Had such a certification been provided, in all likelihood the matter would have settled. Biomax obtained a written report from Mr Tim Moore, a civil and structural engineer, dated
(Page 5)
- 3 October 2006. However, the City did not consider that the report from Mr Moore provided the certification required in its letter of 10 July 2006.
12 The matter was listed for hearing on 5 December 2006. The parties advised the Tribunal that they did not intend to call any witnesses, and relied only on the documents. At the hearing, the Tribunal raised an issue as to the proper recipient of the City's decision. It noted that under reg 10(3) of the Health (Treatment of Sewerage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA) (Regulations) where an environmental health officer inspects an apparatus and is not satisfied that the apparatus conforms with the regulations, the environmental health officer shall advise the owner as to what corrective works are necessary to ensure the apparatus conforms. The Regulations define "owner" in relation to an apparatus to mean the owner of the premises upon which the apparatus is constructed or installed.
13 The City's representative was given the opportunity to make submissions as to why the City's decision was directed to Biomax rather than the owner given the statutory provisions concerning the provision of a permit to use the ATU.
14 At the hearing, the parties advised the Tribunal that the owner of the subject premises was not aware of the application. The Tribunal ordered:
(a) that the applicant and the respondent give a copy of the application's supporting documents upon which each relied, to the owner of the subject premises, and that that person be given the opportunity to file any further submissions or information it wished the Tribunal to take into account in the determination of these proceedings; and
(b) that thereafter, the matter be determined on the papers.
15 As at the date of determination of this matter, no such information or submissions have been received from the owner of the subject premises.
Legal framework for review
16 Section 36(1) of the Health Act enables any person aggrieved by a decision of a local government to apply to this Tribunal for a review of that decision.
17 The Tribunal has, in accordance with s 29(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the same jurisdiction,
(Page 6)
- functions and discretions as those of the decisionmaker in this case, the City and its delegated principal environmental health officer.
18 The Tribunal may, pursuant to s 27(1) of the SAT Act, take into account any additional or new information that was not at the disposal of the City at the time the decision was made. The review hearing is, therefore, a hearing de novo and is not confined to matters and information available to the decisionmaker at the time of the decision.
19 The powers of the Tribunal, according to s 29(3) of the SAT Act are to either:
"(a) affirm the decision; or
(b) vary the decision; or
(c) set aside the decision,
and make any order the Tribunal considers appropriate."
20 Under the Regulations, an ATU is defined to mean:
"an apparatus for treating sewerage either wholly or partially by aerobic means and includes any associated effluent disposal system."
21 Regulation 6A adopts the Code of Practice, and Pt 2 item 6 of the Code of Practice suggests that an ATU must be a minimum of 1200 millimetres from any boundary or building.
22 Regulation 7A requires that a person who constructs or installs an apparatus of a kind to which an adopted Code of Practice applies, must ensure that its construction complies with that Code of Practice. Part 2 of the Code of Practice sets out the methods for installation, operation and maintenance of ATUs serving single dwellings. Part 2 item 9 of the Code of Practice confirms that an ATU must be inspected by the local government, and a permit to use the apparatus issued prior to its use in accordance with reg 10.
23 As earlier indicated, reg 10(3) provides that where an environmental health officer inspects an apparatus and is not satisfied that the apparatus conforms with the regulations, the environmental health officer shall advise the owner as to what corrective works are necessary to ensure that the apparatus conforms.
(Page 7)
24 Regulation 3 defines "owner" in relation to an apparatus to mean the owner of the premises on which the apparatus is constructed or installed.
25 Under s 26 of the Health Act, a local government may appoint any person to be its deputy and, in that capacity, exercise and discharge any of the functions of the local government. The City has submitted, in a document dated 18 December 2006, that Mr David Cook, the environmental health officer who issued the letter dated 10 July 2006 to Biomax, had the relevant delegated authority.
Consideration
26 Regulation 10 governs the method by which a permit to use an ATU is given. Importantly, under reg 10(3), where an environmental health officer is not satisfied that an ATU conforms with the Regulations, he/she must advise the owner of the premises upon which the ATU is constructed, what corrective works are necessary to ensure that the ATU does conform. An owner of an ATU means the owner of the premises upon which the ATU is constructed or installed. The City's decision was issued against Biomax, the installer of the ATU.
27 Regulation 10(3) only allows the City to issue a decision concerning nonconformity of the ATU with the regulations, against the owner of the premises upon which the apparatus is located. Despite being invited to do so, the City made no submission in support of any power in the City to direct its decision to Biomax, the installer of the ATU who was not the owner. The Tribunal considers that the City had no power to make a decision against Biomax in respect to whether a permit to use the ATU would be granted. It is also the case that only an owner would have standing to seek review of such a decision. Whereas here the decision is made against the (illegible) party, the proper course is to set aside the decision.
28 Having reached the above conclusion, the Tribunal cannot determine whether, had the decision been made against the owner, a discretion might be applied to allow a small deviation from the boundary setback for the location of the ATU. It appears to the Tribunal, however, that there are factors which may support the exercise of any discretion in the owner's favour.
Orders
29 Pursuant to s 29 of the State Administrative Tribunal Act 2004 (WA):
(Page 8)
- 1. The decision of the City of Swan set out in its letter dated 10 July 2006 be set aside.
I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J HAWKINS, MEMBER
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