Cooma-Monaro Shire Council v McGeehan
[2013] NSWLC 14
•09 August 2013
Local Court
New South Wales
Medium Neutral Citation: Cooma-Monaro Shire Council v McGeehan [2013] NSWLC 14 Hearing dates: 19/07/2013 Decision date: 09 August 2013 Jurisdiction: Civil Before: Magistrate Bone Decision: Judgment in favour of the plaintiff for $447.74
Catchwords: CIVIL PROCEEDINGS - local council - recovery of water rates - accuracy of water meter - method of testing - rate charged for water usage Legislation Cited: Local Government (General) Regulation 2005 Category: Principal judgment Parties: Cooma-Monaro Shire Council (plaintiff)
Andrew M McGeehan (first defendant)
Lynda Ryan (second defendant)
Janice S Ryan (third defendant)Representation: Mr C Moschoudis for the plaintiff
Defendants self-represented
File Number(s): 2012/00372787
Judgment
Reasons for Decision
The plaintiff is suing the defendants for $2,803.35. The claim relates to water rates. The defendants dispute the claim on the basis that (a) they did not receive the water for which they have been charged and (b) the charge has been made at a higher rate than that to which the plaintiff is entitled. The case has been heard in the Small Claims Division. The parties filed affidavits and the matter was heard in an informal manner with a combination of debate and submission. Documents consisting of several hundred pages were tendered.
Background
The defendants own a twenty-two acre property called "Bulong" which is within the boundaries of the Cooma-Monaro Shire Council. They operate it as a farm. The plaintiff supplies water to the property. The water usage, in kilolitres, as outlined in the plaintiff's water bills have been as follows:
- August 2007 - August 2008 (12 months) 372
- August 2008 - August 2009 (12 months) 294
- August 2009 - August 2010 (12 months) 558
- August 2010 - February 2011 (6 months) 1806
- February 2011 - August 2011 (6 months) 399
- August 2011 - February 2012 (6 months) 47
The disputed account relates to the water usage between August 2010, and February 2012. It can immediately be seen that the alleged water usage in most of this period is out of all proportion to the usage at other times. There is no suggestion that the defendants have attempted to do anything devious or under-handed in order to minimise their bills. The plaintiff suggests that the pipes on their property were old and there was a leaking of water from the pipes into the ground. The defendants accept that the pipes were old and there had been some leakage but steps were taken to rectify the problem by gradually checking and replacing the pipes and the defendants maintain that the water meter, which was replaced in November 2011, could not have been working properly during the August 2010 to February 2012 period.
After receiving the account for the water usage of 1806kl, the defendants requested the plaintiff to test the water meter. The plaintiff did so on 17 March 2011. The plaintiff maintains that the testing was done properly and showed that the meter was accurately recording water usage. The defendants maintain that the testing was not done properly.
Testing of the water meter
The method which is used to test the accuracy of a water meter is as follows. A test meter which is known to be accurate is inserted into the piping system on the customer's side of the meter which is ordinarily used to measure the customer's water usage. The water, having passed through the two meters, is then allowed to pass through a valve. The valve can be used to regulate the rate at which the water flows. Readings are obtained from each meter at the beginning and end of the test. As the water passes through both meters, the volume as recorded on the customer's meter will be the same as the volume recorded on the test meter if the customer's meter is recording properly. The tests are not meant to be 100% accurate, an error rate of 3% being acceptable (the plaintiff maintains that up to 4% is considered acceptable but cl 158 of the Local Government (General) Regulation 2005 deals with the testing of water metres and cl 158(5) states - "a water meter that registers less than 3 per cent more or less than the correct quantity is taken to correctly measure the water passing through it").
The plaintiff maintains that there are in fact two tests to be undertaken. The first requires the water to pass through the meters at "high flow", which is defined as 2,500 litres/hour, and the second requires the water to pass through the meters at "low flow", which is defined at 300 litres/hour.
The defendants agree that the general methodology which the plaintiff asserts should be used is appropriate but maintain that four tests are required. The defendants rely upon the Australian Standards for Water Meters, particularly upon clause 6.3. A copy of that clause is annexed to this judgment and marked "A". In short, the standards require four tests with flow rates of 300, 600, 1,200 and 2,400 litres/hour.
The test was undertaken by two Council officers, Roland Herbert and Jason Thompson. The report which Mr Thompson completed on the day of the test shows that two tests were undertaken.
The high flow test: the report shows that five hundred litres went through the test meter in eight minutes. That same volume of water produced a reading on the customer's meter of five hundred and five litres. Five hundred litres of water passing a given point in eight minutes equates to a flow rate of 3,750 litres/hour. The error of five litres represents an error rate of 1%.
The low flow test: the report shows that five hundred litres went through the test meter in fourteen minutes. That same volume of water produced a reading on the customer's meter of four hundred and eighty litres. Five hundred litres of water passing a given point in fourteen minutes equates to a flow rate of 2,142 litres/hour. The error of twenty litres represents an error rate of 4%.
Cost of water
The defendants were charged for the water at the rate of $1.15/kl for the first three hundred kilolitres and $1.73/kl for consumption in excess of three hundred kilolitres (other than for that part of the claim which relates to the final 47 kilolitres, the rate for that consumption being $1.15/kl). The defendants accept that those are the correct rates for land other than farming land. They assert, however, that their land is farming land and a lower overall rate of $1.15/kl is the correct charge for water used on farming land. The plaintiff referred to Development Control Plan No. 27, clause 3 of which states "This plan applies to all areas within the Cooma-Monaro Shire which are serviced by Council's water supply schemes" and clause 10.1 of which states "Council water supplies shall NOT be used for agricultural purposes" (this clause appears in a section which relates to "Special Conditions (Consumer Service - Rural Only)").
Conclusion
Charges: the plaintiff has applied the correct charge for the water used by the defendants. It provides water to certain properties and, irrespective of the use or zoning of a property, the water provided must not be used for agricultural purposes. A property holder who wishes to use water for agricultural purposes must seek to obtain that water from a supplier other than the plaintiff. The defendants obtained the water used at "Bulong" pursuant to Development Control Plan No. 27.
The meter: there is a presumption that instruments which we rely on in our everyday life are accurate (e.g. speedometer, clock). The presumption is, however, rebuttable. It is reasonable to accept in the absence of evidence to the contrary that a water meter is working properly and is, within an acceptable degree of error, accurately recording the volume of water which has passed through it. The water meter which was on "Bulong" was eventually replaced on 1 November 2011. It was coming to the end of its operational life in the August 2010 to August 2011 period but there is nothing to suggest it was not working properly before that period. There was a consistency as to the annual water usage calculated by the meter in prior years and the defendants had paid the water bill without complaint for a number of years. The water usage of 2205kl in the twelve months period from August 2010 represents a substantial deviation from the norm. The testing carried out on 17 March 2011 produced results which the tester maintained indicated that the meter was working properly. I am not satisfied that that conclusion was correct.
The plaintiff maintains that, to determine whether a meter is operating properly, two tests are sufficient - a "high flow" of 2,500 litres/hour and "low flow" of 300 litres/hour. The defendants maintain that four tests should be conducted. In my opinion, it does not matter because the two tests conducted by the plaintiff were not conducted within its own protocol. As previously indicated, what purported to be the "high flow" test saw five hundred litres passing through the test meter in eight minutes - a rate of 3,750 litres/hour; what purported to be the "low flow" test saw five hundred litres passing through the test meter in fourteen minutes - a rate of 2,142 litres/hour. These two rates are far removed from the "protocol" rates of flow. It is clear from the plaintiff's own requirements and the Australian standards that at least two tests, one conducted at a flow rate of 2,400 or 2,500 litres/hour and the other conducted at a flow rate of 300 litres/hour are required to properly test a water meter. Those tests were not conducted and, under the circumstances, I am not satisfied that the meter was accurately recording the volume of water which passed through it.
I also note, in passing, that the meter was recording with a 4% error rate in relation to one of the tests and that is above the level which provides "statutory accuracy" (see again reg 158 (5)).
Regulation 158 of the Local Government (General) Regulation states, in part:
158 Testing of meters
(1) At the request of an owner or occupier of premises and on the payment of a fee fixed by the council, the council must arrange for a water meter installed on the premises to be examined and tested.
...
(3) If, as a result of such an examination and test, a water meter is found not to correctly measure the quantity of water passing through it, the council may charge for the supply of water:
(a) on the basis of a daily consumption equal to the average daily consumption during the corresponding meter reading period of the previous year, or
(b) on such other basis as the council and the consumer may agree.
(4) Testing carried out at the request of a person who is the owner or occupier of premises is to be at the expense of the person, unless the meter is one hired from or provided by the council and the testing indicates that the meter is defective, in which case the testing is to be at the expense of the council.
The defendants were supplied with 558 kilolitres of water in the twelve months prior to the period which is the subject of this litigation. They are therefore indebted to the plaintiff as follows:
- August 2010 - August 2011 (12 months): 588 kilolitres (300 kilolitres at $1.15/kl and 258kl at $1.73/kl), a total of $791.34
- 26 August 2011 - 1 November 2011 (the day the meter was replaced): this period is 68 days, being 0.186 of a year; reg. 158(3) requires the consumption to be calculated as 0.186 x 558 = 103 kilolitres, a total at $1.15/kl, being $118.45
- 1 November 2011 - February 2012: 33 kilolitres at $1.15/kl, a total of $37.95
The sum of those amounts is $947.74. A payment of $500 has already been made leaving a debt of $447.74.
There will be a judgement in favour of the plaintiff for $447.74.
Magistrate C Bone
Cooma Local Court
**********
"A"
AS 3565.4 - 2007
Australian Standard
Meters for water supply
6.3 Customer-initiated testing
Where the accuracy of an individual meter is in dispute and where required, testing of the individual meter will be subject to flow rate testing at 300 L/h, 600 L/h, 1 200 L/h and 2400 L/h.
Where tested at the customers property and a flow rate of 2400 L/h cannot be achieved the testing shall be carried out at the 3 lower test points and the maximum flow rate available. For the purposes of determining the weighted relative error, the accuracy at the maximum flow test point shall be extrapolated to 2400 L/h for use in the formula given in Clause 8.6.1.
NOTE: Water utility customers may at some stage dispute the accuracy of the water meter installed at their property. Some water utilities may have either legislative provisions, or customer contracts with requirements that guarantee the customer that the water meter will be regarded as unreliable if after testing the results are outside specified accuracy limits.
Decision last updated: 07 November 2013
0
0
1