David William Underwood v Commissioner of Fair Trading, Department of Finance, Services and Innovation

[2018] NSWLEC 1003

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	David William Underwood v Commissioner of Fair Trading, Department of Finance, Services and Innovation [2018] NSWLEC 1003
Hearing dates:	4 January 2018
Date of orders:	04 January 2018
Decision date:	04 January 2018
Jurisdiction:	Class 2
Before:	Dixon C
Decision:	See paragraph [8]
Catchwords:	CONSENT ORDERS – Notice to comply under s9(1)(a) of the Plumbing and Drainage Act 2011
Legislation Cited:	Land and Environment Court Act 1979 Plumbing and Drainage Act 2011 Sydney Water Act 1994
Category:	Principal judgment
Parties:	David William Underwood (Applicant) Commissioner of Fair Trading, Department of Finance, Services & Innovation (Respondent)
Representation:	Counsel: Ms E Tringali (Applicant) Mr M Fozzard (Respondent) Solicitors: Mr D Loether, Bartier Perry Lawyers (Applicant) Ms M Snell, Department of Finance, Services and Innovation (Respondent)
File Number(s):	2017/325805

Judgment

1. On 27 October 2017, these class 2 proceedings were commenced in the Court seeking revocation of a Notice to Comply (the Notice) issued by a delegate of the Commissioner of Fair Trading, Department of Finance, Services and Innovation (Respondent) under s 9 (1)(a) of the Plumbing and Drainage Act 2011.

2. The Commissioner is a plumbing regulator.

3. The Notice states that plumbing and drainage work being carried out at 4 Little Young Street Redfern (the site) fails to comply with the Plumbing Code of Australia (PCA). The PCA is the technical standard for all plumbing and drainage work in New South Wales. The Notice was received on 16 August 2017 and had the effect of stopping all works from being carried on site.

4. The applicant originally sought orders that the Notice be revoked and by implication of the revocation permission for the plumbing and drainage work to be finalised in order to allow Sydney Water to proceed with issuing a section 73 compliance certificate under the Sydney Water Act 1994. However, at commencement of the hearing the parties informed me that they had resolved the issues between them and invited me to make Consent Orders disposing of the appeal.

5. The applicant, who was represented by a lawyer, Ms Tringali, was in attendance at the hearing. The respondent was represented by Mr Fozzard, of counsel.

6. At the outset I asked about my jurisdiction to entertain the application. The advocates stated that my jurisdiction to hear and dispose of the application arises from s18 (h) of the Land and Environment Court Act 1979 which provides for appeals to the Court under s39 of the Plumbing and Drainage Act 2011. Ultimately, Mr Fozzard, on behalf of the respondent, raised no objection to the Court proceeding to dispose of the appeal on the terms stated in the signed consent orders dated 4 January 2018. Ms Tringali told me that her client understood the terms of the orders and the consequences should he fail to complete the schedule of works within the nominated 60 day period.

7. The background facts are set out in the Statement of Facts and Contentions filed with the Court on 24 November 2017 and the Statement in Reply dated 5 December 2017. I do not need to repeat that detail and the relevant legalisation which I have considered and reviewed.

8. I am satisfied that the orders proposed are both lawful and appropriate in the circumstances and with the consent of the parties make the following orders by consent:

1. The appeal is upheld.

2. The Notice to Comply, issued by NSW Fair Trading, reference number S472350853255 is revoked.

3. The Applicant is to complete the following ‘Schedule of Works’:

Schedule of Works

1. The joint sewer line located on 4 Little Young Street, Redfern (the Property), is to be renewed within the Property boundary and encased in mass concrete with 150mm cover through the Property, as agreed with Sydney Water in their Amended Notice or Requirements dated 4th November 2016 and as shown on the accompanying Sydney Water diagram Case No. 154562WW Minor Works. No portion of the joint sewer line need to be renewed or concrete encased outside of the Property boundary.

2. The Applicant must engage a suitably qualified structural engineer to inspect, prior to the concrete pour of the encased joint sewer line within the Property, and is to provide the Respondent a letter prepared by that engineer, confirming that those works have been satisfactorily completed.

3. The Applicant must install three (3) inspection openings within the Property boundary, one on the joint sewer line (from Lot 15 Morehead St) and one on each of the two connecting drainage lines from (Lots 13, 14 and 16).

4. The inspection openings referred to in (b) above shall be raised to ground level and be installed with bolt trap screws.

4. The Applicant is to complete the ‘Schedule of Works’ within 60 days of the date of these Orders.

5. Within 5 business days of receiving from the Applicant a notice of the completed Schedule of Words and a copy of the letter required pursuant to 3(b) above, the Respondent will inspect the works and will forthwith notify Sydney Water that it has inspected the works and that they are satisfactory to enable Sydney Water to issue its section 73 compliance certificate.

6. The Applicant must ensure that any Sewer Service Diagram or drainage diagram prepared with respect to the construction of any new dwelling erected upon the Property must include the location of the renewed joint sewer line. A copy must be provided to the Respondent on the completion of those works within the Property.

7. Costs in the matter are reserved.

__________________________

Susan Dixon

Commissioner of the Land & Environment Court

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Amendments

08 January 2018 - Wording amended in paragraph 6

10 January 2018 - Amendment to Legal Rep name

12 January 2018 - Typographical error in paragraph 1

Decision last updated: 12 January 2018