Fennell v Gosford City Council

[2011] NSWLEC 1314

Land and Environment Court

New South Wales

Medium Neutral Citation:	Fennell v Gosford City Council [2011] NSWLEC 1314
Hearing dates:	10 October 2011
Decision date:	03 November 2011
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Appeal dismissed; council orders amended
Catchwords:	Section 124 Order - taking of action to bring a domestic waste water management system up to current standards
Legislation Cited:	Local Government Act 1993 Threatened Species Conservation Act 1995
Category:	Principal judgment
Parties:	Susan Fennell (Applicant) Gosford City Council (Respondent)
Representation:	Applicant: Mr A Fennell (agent) Respondent: Mr M Everingham (Solicitor) Gosford City Council
File Number(s):	20532 of 2011

Judgment

1. This is an appeal pursuant to s 180 of the Local Government Act 1993 (the LG Act) against an order made by Gosford City Council (the council) under s124 of the Act. The order (order 21) requires the applicant to take action to bring a domestic waste water management system located behind the cottage on Lot 431 DP847911 being 389 Avoca Drive Green Point (the site), up to current standards on the basis that the current system is not in a safe or healthy condition.

1. The council contends that the septic tank effluent absorption pit on the site has failed allowing effluent to pond on the land surface. The order made by the council is as follows [as written]:

(1)   Install an on-site domestic wastewater management system in accordance with AS1547 On-site domestic wastewater management and the Environment and Health Guidelines On-Site Sewage Management for Single Households capable of handling all likely hydraulic loading generated by the existing residence.

(2)   A copy of an on-site wastewater disposal report prepared by a practising recognised Geo-technical Engineer or other suitably qualified, recognised professional experienced in the field of on-site domestic wastewater management is to be submitted to Council for assessment and advice prior to installation.

(3)   Selection and installation of the on-site wastewater management system is to be supervised and certified by the author of the wastewater disposal report. Inspection of the designed land application area by the author of the wastewater disposal report prior to backfilling is required to permit certification to be issued.

(4)   Commissioning Certificate from the on-site wastewater management system supplier is to be forwarded to Council prior to the system's operation and issue of an Approval to Operate.

(5)   Decommission the existing failed absorption trench and septic tank.

In addition:

(1) All work is to be carried out by a licensed plumber/drainer in accordance with Council requirements and the relevant codes of practice.

(2) An inspection by Council is required for all completed works.

1. The order was issued on 1 June 2011 and a period of 30 days from the date of service was nominated for compliance with the order.

1. The applicant has appealed to the Court and seeks the following alternative orders [as written].

1 That the Gosford City Council order under s. 124 of the Local Government Act 1993 dated 1 st June 2011 be revoked.

2 That the surcharge from the septic tank behind the cottage at 389 Avoca Drive, Green Point be piped to

(a)   the absorption trench behind the tank works at 389 Avoca Drive, Green Point or

(b)   an absorption trench 10 metres long to be constructed/installed by the applicant below the cottage septic tank,

such order to be by way of an order under s. 124 of the Local Government Act 1993.

3 That the respondent pay the applicant's costs of and incidental to these proceedings.

The site and relevant background

1. The site is zoned 7(a) Conservation under the Gosford City Council Interim Development Order 122 (IDO 122). It has a frontage to Avoca Drive and is bisected by a tidal creek. Approximately 80% of the property is below the 1:100 flood contour.

1. The majority of the site is bushland. The vegetation communities are mapped and described in council's ecological report (Exhibit 3). The northern portion is Coastal Narrabeen Moist Forest - not listed in any Schedule of the Threatened Species Conservation Act 1995 (TSCA). Approximately half the site comprises two plant communities included in Swamp Sclerophyll Forest on Coastal Floodplains listed as an Endangered Ecological Community (EEC) in Schedule 1 of the TSCA. The component communities are Swamp Mahogany-Paperbark Forest and Estuarine Paperbark Scrub-Forest. The unlisted Estuarine Mangrove Scrub complex also extends into the site.

1. The site contains an existing two-bedroom fibro cottage constructed in about 1961 (the cottage) and commercial premises known as Green Point Tank Works. The cottage and the Tank Works are leased to separate tenants and a fence separates the structures. Each of these structures has its own On-site Sewage Management System (OSSMS). Council has granted an Approval to Operate for the Tank Works OSSMS but no recent Approval to Operate has been applied for or issued for the cottage. Council records show that the cottage OSSMS was inspected and found to be functioning in 2004 and 2006.

1. According to the Affidavit of Mr Ross Spare, council's Technical Officer - Waste and Emergency Services, Mr Spare issued the applicant a written notice of intention to enter the site to inspect the OSSMS at the cottage. The property was randomly picked in accordance with council's policy to inspect 5% of all OSSMSs in the city on an annual basis.

1. The initial inspection took place on 22 February 2011, however, due to the overgrown nature of the trench disposal area, the inspection could not be completed. On 24 March, Mr Spare inspected the OSSMS in the company of the applicant's tenant. According to his affidavit, Mr Spare stated that there was no surcharge at the time of the inspection but the area around the trench was very spongy and moist. The tenant's washing machine was operating at the time. After Mr Spare left the property, he received a phone call from the tenant. When Mr Spare returned to the site, the tenant told him that the trench had surcharged after Mr Spare had left the property.

1. Mr Spare reinspected the property on 25 March and saw effluent discharging out of the septic tank with the effluent disposal trench noted as being very wet and spongy with evidence of surcharge on the surface of the ground. As a result of this observation, Mr Spare formed the opinion that the OSSMS servicing the cottage had failed and that it posed a threat to human health and to the environment. In Mr Spare's opinion, the most appropriate action was to issue the applicant with an order pursuant to s 124 of the LG Act requiring the applicant to install an OSSMS in accordance with Australian Standard AS1547. On 29 March, a Notice of Intent to Issue an Order was served on the applicant. This is the subject of the appeal before the Court.

1. In August 2011, in response to the s 124 order, the applicant engaged Whitehead & Associates Environmental Consultants Pty Ltd to prepare a fee proposal for an OSSMS for the cottage. The scope of works sets out the relevant tests, standards and guidelines required to prepare a Wastewater management Report as required by council.

The relevant controls and standards

1. The council contends that the following controls, standards and policies are applicable.

1. The draft Gosford Development Control Plan 2009 (DGDCP) is considered to be imminent and certain. Chapter 6.6 - On-site Effluent and Greywater Disposal in Part 6: Environmental Controls in part states that the objectives of the chapter are to:

6.6.3 Objectives of the Chapter

(a) To protect the health of people through proper on-site disposal of effluent and waste water.

(b) To protect the natural environment from improper methods of on-site effluent and waste water disposal.

(c)   To specify the requirements of suitable on-site sewage disposal systems and waste water recycling systems.

1. Clause 6.6.4.1 in part requires an application to install or alter an OSSM to be approved by council. Clause 6.6.4.2(i) states that in order to protect the health of people, the design of the OSSMS must be appropriate to the site and soil conditions with approval by the council of the system. In order to protect the natural environment, cl 6.6.4.3(vii) states that effluent disposal areas must be a distance of 100m from any sensitive environments such as wetlands, watercourses or any species or community listed under the TSC Act. Where a buffer distance is not obtainable further treatment or disposal methods will be considered.

1. The draft GDCP refers to other relevant standards, policies and guidelines. Chapter 6.6 describes a range of systems and lists the relevant requirements for each system. Clause 6.6.8.1 discusses site and soil investigation requirements for residential land. This clause cites AS1547:2000 On-site Domestic Wastewater Management and the Environment and Health Protection Guidelines: On-site Sewage Management for Single Household s [the Guidelines]. The clause states that:

In the case of high, medium and most low risk sites or commercial industrial situations Council will require a report from a consultant who is suitably qualified for this type of work.

1. Gosford City Council On-site Sewage Management Strategy 2005 (GCC Strategy) applies. The introduction to this document provides relevant background information regarding the development of this council policy. Relevantly this states in part:

The NSW State Government introduced legislative changes through the Local Government (Approvals) Amendment (Sewage Management) Regulation 1998 which clarified the responsibilities of householders and councils to ensure that new and existing OSSM systems comply with the installation and performance standards and that they are managed and operated in a proper manner and do not pose a risk to public health or the environment. The Amendments were incorporated in the Local Government (Approvals) Regulation 1999 and remade in the Local Government (General) Regulation 2005.

The Regulation in conjunction with the accompanying Environment and Health Protection Guidelines of On-site Sewage Management for Single Households sets performance standards for the installation, operation and maintenance of sewage management systems.

1. GCC Strategy lists an extensive range of forms of OSSMSs including septic tanks and absorption trenches as well as many other systems. Section 1.3 Performance Objectives state in part that:

The aim of this On-site Sewage Management Strategy is to provide and maintain a practical mechanism for the effective management and improvement in performance of the OSSM systems installed throughout the Gosford City area.

1. GCC Strategy Section 2 - Legislation states:

The clear intention of the legislation is to regulate and control the installation and operation of OSSM systems, to identify and rectify any defective systems throughout New South Wales and to remove the potentially serious public health risks and environmental pollution incidents.

Where OSSM systems fail to achieve the prescribed requirements Council may require action or works to be carried out under Section 124 of the Local Government Act 1993 where it may

1 Order the premises connect to sewer where available.

2 Order the conversion of a system to pumpout where on-site disposal and sewer is not available.

3 Order the modification or upgrading of a system incorporating on-site disposal where site conditions are suitable and sewer is not available.

4 Order the premises to be maintained in a safe and healthy condition.

5 Order the satisfactory treatment, storage and disposal of waste generated on land or premises.

1. Section 5.3.6 - Upgrading Failing Systems is relevant.

System inspections are required to ensure that all OSSM systems are installed and operated in accordance with the conditions specified in any Council approvals. Beyond system design and installation, those approval conditions relate primarily to the performance standards specified in the Guidelines and this Strategy.

System failure is deemed to have occurred when a system fails to achieve these prescribed performance standards resulting in adverse impacts on public health or the environment.

Where a system failure is identified, Council may take one of more of the following actions....[including action or works to be carried out under Section 124 of the Local Government Act 1993 as listed in [17]].

1. Section 8.1 of GCC Strategy states in part that the efficiency of the Strategy will be evaluated by a monitoring program which can involve the random inspection of OSSM systems throughout the council area.

1. Another relevant document is Environment & Health Protection Guidelines: On-site Sewage Management for Single Households prepared by a number of NSW State Government Authorities and published in 1998. This document is cited in the draft GDCP and in the council's Strategy. According to the Introduction, the guidelines have been developed " to help local councils assess, regulate and manage the selection, design, installation, operation and maintenance of single household' OSSMSs. Sections of the document raised by the parties include whether the buffer distance between the cottage OSSMS should be 40m or 100m (Table 5), and the estimated longevity of OSSMS components (p 82. examples given - septic tanks up to 25 years, and soil absorption systems of 5-15 years).

1. AS/NZS 1547:2000 On-site domestic-wastewater management (the Standard) is relevant as it is cited by the council's Strategy. Part 2 covers 'Performance' and prescribes performance objectives and requirements for management of OSSMSs, site and soil evaluation, wastewater systems, and construction and installation. Part 3 of the Standard covers 'Management of OSSMSs' and includes details on the roles and training of the range of authorities and personnel involved in the regulation, planning, design, installation and maintenance of such systems. Part 4 covers 'Means of Compliance'. Section 4.2 covers 'Land-Application Systems'. Appendices in this part describe in detail the procedures and special considerations for inter alia "Site and Soil Evaluation: Procedures" and "Site and Soil Evaluation for Individual Lots".

1. The applicant presses the inclusion of "The easy septic guide" a guideline published by the NSW Department of Local Government in 2000. A paragraph on p16 of that document states " Absorption trenches should last for 15-25 years, but if they are not maintained properly the trench life can be reduced to as little as two years". Elsewhere on that page it also states" You can tell if the trench has failed because the area will be soggy, smelly and covered with dense grass".

The hearing and the evidence

1. The hearing commenced with an inspection of the site. The cottage septic tank is of concrete construction and located behind the cottage. The exact location of the absorption trench is unknown but it was noted that the ground below the tank was damp and spongy. The likely location of the trench was indicated. The proximity of the bushland and tidal creek were noted. Nothing was surcharging from the tank at the time of the site view.

1. The septic tank on the adjoining tank works was also inspected. This is a relatively new in-ground plastic tank connected to an absorption trench. The applicant pointed out the proximity of the trench to the creek - about 20m. The tank works OSSMS was installed by a plumber and approved by council in 2007. The approving officer was someone other than Mr Spare.

1. Mr Ross Spare, council's Technical Officer - Waste and Emergency Services gave evidence in Court. Mr Fennell questioned Mr Spare's expertise in relation to forming an opinion as to the failure of the septic tank. Mr Spare stated that he has qualifications in Health and Building Surveying and has been undertaking routine inspections of OSSMSs on behalf of council for at least four and a half years and prior to that was an Environmental Health and Building Inspector for council. Mr Spare recounted the events outlined in his affidavit. He stands by his opinion that the absorption trench has failed and considers that when this happens they don't usually recover due to the effective waterproofing of the trench over time. In his opinion, the surcharge he observed would be a mixture of primary treated effluent including greywater and human waste that would inevitably include faecal coliform bacteria.

1. Mr Spare stated that the order he drafted and later issued is a standard order for such breaches and is not dissimilar to the requirements for new or replacement OSSMSs. Mr Spare considers that council has taken a co-operative approach and has tried to work through the issues; in the alternative, council could have issued a Penalty Infringement Notice but it did not. Mr Spare also considers that the letter regarding the fee proposal from Whitehead & Associates sets out the normal requirements for the preparation of a Wastewater Management Report.

1. Mr Fennell questioned Mr Spare about an alleged statement Mr Spare made to Mr Fennell that "absorption systems are dinosaurs" and pressed Mr Spare that he was biased against such systems to the point where he had not approved any absorption systems in the past four and a half years. Mr Spare stated that in his opinion, absorption systems were generally inappropriate and certainly inappropriate for the site in question given the environmental sensitivity of the site. If a Wastewater Management Report from a reputable consultant came back with a recommendation for an absorption system for the site he would be surprised and he would commission an independent assessment of the report on behalf of council.

1. Mr Fennell gave sworn evidence. He stated that between 1968 to 1974 he and his wife and two children lived in a dwelling at East Gosford with a septic tank and absorption trench without the system failing. Similarly, from 1974 to the present, the septic tank and absorption trench at their Ourimbah property has worked well and coped with their family during that entire time. He also contends that the cottage system worked well until just prior to the council's letter of February 2011. Therefore in his experience, absorption systems work well. He cites what he calls the imprecise and "rubbery figures" regarding the longevity of ground-based systems in the various guidelines as being far less than the longevity of the systems he has experienced.

1. In his opinion, the appropriate solution to the problem is the construction of another absorption trench below the existing trench or a connection made to the trench on the tank works. He considers that the council approved the absorption trench for the tank works at a time when the documentation the council relies on was in existence.

1. Mr Fennell stated that a Wastewater Management Report would cost about $3000 and a new OSSMS may cost up to $15,000. He considers this would be difficult to recoup given the low rent charged for the cottage and the financial circumstances of the current tenant.

1. When questioned as to his expertise in relation to the assessment and design of OSSMSs as specified in Part 3 of AS/NZS 1547:2000, Mr Fennell stated that he does not have those qualifications but simply the experience of living with septic tank and absorption systems.

Submissions

1. The applicant submits that until recently the cottage OSSMS has been functioning and all that needs to be done is to dig another replacement absorption trench or connect the cottage to the trench behind the tank works and that a geo-technical report is unnecessary. The longevity of the cottage OSSMS is testament, he says, to the capacity of the site and the site to deal with effluent disposal. Mr Fennell disputes that the system has "failed" but accepts it is "struggling" to cope with extra water from the washing machine. Essentially, he contends that the council is forcing a new system rather than the rectification of the existing system. He considers the council officer has an unwarranted bias against absorption systems and that such systems are within the council's discretion to approve. Mr Fennell contends that had the council extended the sewer system that option would be available to them.

1. The basis of the applicant's position is that time and experience demonstrate that septic tank and absorption systems can successfully operate for a very long time and the continued use of that system, with a new trench, is appropriate in the circumstances.

1. The applicant presses s 131A of the LG Act. This states:

131A Orders that make or are likely to make residents homeless

(1) If an order will or is likely to have the effect of making a resident homeless, the council must consider whether the resident is able to arrange satisfactory alternative accommodation in the locality.

(2) If the person is not able to arrange satisfactory alternative accommodation in the locality, the council must provide the person with:

(a) information as to the availability of satisfactory alternative accommodation in the locality, and

(b) any other assistance that the council considers appropriate.

1. The applicant contends that the current tenants are impecunious and would find it difficult, if not impossible, to find nearby accommodation for a modest rent. If the order is upheld, the applicant states that the tenant may have to be evicted and the cottage closed down.

1. Mr Everingham for the council contends that notwithstanding the approval for the tank works OSSMS and the previous compliance of the cottage OSSMS, in February 2011 the system was deemed to have failed. He considers that the council order is reasonable and prudent and in accordance with the council strategy and other guidelines. The council is simply asking for a site assessment by a suitably qualified person and a design that will rectify the situation.

Findings

1. After considering the actions and positions of the parties in the light of the relevant documents, I find that the order should be upheld and the appeal dismissed.

1. The applicant, in part, relies on a statement on p86 of the Guidelines under the sub-heading 'Local Council Approval'. This states:

Local councils may conditionally approve of septic tank and septic closet installations. A list of conditions commonly used by councils is attached as Appendix 3. The appropriate conditions from this list should be selected and applied, plus any others that are needed.

Relevantly, the first general condition requires work to be carried out "in accordance with the requirements of the local sewage authority or the Local Government (Water Sewerage and Drainage) Regulation 1993 [superseded by Local Government Regulation (General) Regulation 2005 ]. No alterations or additions are permitted without the express approval of council."

1. In my view, in the course of implementing an adopted council policy, the Gosford City Council On-site Sewage Management Strategy 2005, an appropriately qualified and experienced council officer, found a septic system to be discharging. In the circumstances of the septic system servicing a residential dwelling in close proximity to a water way and several EECs, the issuing of a s 124 order was an appropriate action.

1. It is entirely reasonable to assume that a surcharging septic tank will lead to the surface discharge of a mixture of greywater and human effluent. It is not necessary to have a degree in microbiology to understand that this is a potential health hazard. Similarly, any runoff from the site could eventually make its way into the nearby creek system.

1. The council strategy was prepared in accordance with legislative requirements and is entirely consistent with the NSW government Environment & Health Protection Guidelines: On-site Sewage Management for Single Households and AS/NZS 1547:2000 On-site domestic-wastewater management. It is appropriate that council operate in accordance with such standards and guidelines.

1. It is clear from AS/NZS 1547:2000 that the assessment, design, and installation aspects of OSSMSs each require specialist knowledge and experience which are beyond the knowledge and expertise of Mr Fennell, and indeed Mr Spare. The council's order requires the applicant to firstly engage a suitably qualified person to prepare an onsite wastewater disposal report to be submitted to council. Once assessed by council the report is to guide the selection and installation of the recommended OSSMS. The installation of the OSSMS is to be supervised and certified by the author of the report. A Commissioning Certificate is to be forwarded to council before council can issue an Approval to Operate.

1. Mr Fennell cites part of cl 4.2.3.1 of AS/NZS 1547:2000 to support his argument that the trench has performed well in the past and a new trench is all that is required.

Where design experience, and/or research results, and/or performance practice can demonstrate that less conservative approaches provide an equal or superior result in achieving performance objectives, they can be adopted.

The remainder of that clause says " Justification for their adoption shall form part of the final Design Report." Thus, compliance with the standard still requires the undertaking of a detailed site and soil analysis.

1. The order does not state that a septic tank/ absorption trench is prohibited but I accept Mr Spare's opinion that he would be surprised if any of the consultants who regularly undertake such assessments in the Gosford area would recommend such a system in the circumstances of the site.

1. Relevantly, s 5.4.3 of Environment & Health Protection Guidelines: On-site Sewage Management for Single Households covers soil absorption systems. Paragraph 3 of that section states (sentence in bold is as it appears in the document):

The wastewater flows through the soil profile, eventually reaching groundwaters and surface waters. This can result in adverse public health and environmental effects. Soil absorption systems generally do not comply with the performance objectives of these guidelines. They could, however, be appropriate in some circumstances, depending on the site factors (particularly soil type, groundwater depth and development density).

The performance objectives are given as: prevention of public health risk; protection of lands; protection of surface waters; protection of groundwaters; conservation and reuse of resources; and protection of community amenity.

1. It would appear from that paragraph of that 1998 document that there is a general recognition of the limitations of soil absorption OSSMSs but their use may be acceptable if the relevant tests are carried out and the site characteristics are suitable.

1. Mr Fennell's experience with septic tank/ absorption systems in other locations is not relevant to the failure of the OSSMS behind the cottage as the circumstances of each site are unique. The fact remains that a 50-year-old system has failed and the expected standards for human and environmental health have moved on in the time since the system was installed. There are Australian Standards, government guidelines and adopted council policies that provide a consistent approach and detailed procedures to bring such failed systems up to current, acceptable standards.

1. With respect to the applicant's alternative orders, orders (1) and (2) are dismissed as they do not meet the current controls, guidelines and standards. Similarly, the alternative orders do not meet the objectives of Part 6 of the Draft GDCP relating to on-site effluent and greywater disposal. With respect to order (3) and the awarding of costs, Commissioners do not have the power to award costs and a separate application must be made.

1. Therefore, as previously stated, I find that the council has adopted a consistent and reasonable approach and the s 124 order is appropriate in the circumstances. It is undeniable that compliance with current standards generally comes at a financial cost. I accept Mr Fennell's argument that compliance may jeopardise the cottage's tenancy however, the interests of ensuring human and environmental health must prevail. If the tenants are to remain I recommend that the existing septic system be maintained by desludging until the new system is ready to be commissioned. Once council has issued an Approval to Operate, the old system must be decommissioned.

1. Therefore, in accordance with s 180(4) of the Local Government Act 1993 , the appeal is dismissed and the s 124 (No. 21) order issued by Gosford council is upheld. However, given the lapsing of the nominated time frame, and the issue raised in [50] above, the council is to prepare a modified s 124 order within 7 days of the date of this judgment to be filed and served on the applicant and the Court within that time frame. The matter is to be listed for a mention where submissions may be made by each party as to the timing of the implementation of the orders. Once determined, final orders will be made in chambers.

Final orders

1. After hearing submissions by the parties on the matters raised by me in [51], it is confirmed that any decommissioning of the existing OSSMS can take place after the installation of a new system. This should limit the disruption to the tenancy arrangements. Given the timing of the resolution of the matter, the applicant will have until 5.00 pm on 10 February 2012 to comply with the orders. A copy of the s 124 order will be attached to the sealed Orders of the Court.

1. The Orders of the Court are:

(1) Order No 21 made pursuant to s 124 of the Local Government Act 1993 made by Gosford City Council on 1 June 2011 [as shown in paragraph 2 of this judgment] requiring the applicant to take action to bring a domestic waste water management system located behind the cottage on Lot 431 DP847911 being 389 Avoca Drive Green Point up to current standards on the basis that the current system is not in a safe or healthy condition stands with the works to be completed by 5.00pm 10 February 2012.

_____________________________

J Fakes

Commissioner of the Court

Decision last updated: 04 November 2011