Kingsbrook SA P/L v Alexandrina Council
[2020] SADC 39
•7 April 2020
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
KINGSBROOK SA P/L & ANOR v ALEXANDRINA COUNCIL
[2020] SADC 39
Reasons for Decision of Her Honour Judge Schammer
7 April 2020
ADMINISTRATIVE LAW
ENVIRONMENT AND PLANNING - POLLUTION - LAND POLLUTION AND WASTE - REGULATION - PARTICULAR CASES - SEPTIC TANK EFFLUENT AND SEWERAGE
Appeal against a Compliance Notice dated 28 August 2019 issued by the Alexandrina Council (Respondent) to Kingsbrook SA Pty Ltd (First Appellant) and Christopher Norris (Second Appellant) pursuant to s 92 of the South Australian Public Health Act 2011 (Act). The Compliance Notice requires the Appellants to take one of three specified actions relating to a wastewater system at a property at Currency Creek (System). The System currently services a residence, restaurant and accommodation facility at the property. At the time the System was approved and subsequently installed, it was only required to service the residence at the property. The property was subsequently developed to provide for a restaurant and accommodation facility. At the time of the development, the First Appellant made application to alter the System to replace it with one of increased capacity, which application was approved. The approval was not acted upon and lapsed.
The Appellants subsequently used the property for many years for commercial purposes without upgrading the System. In a report dated 19 February 2019, Water Technology, Water Coastal and Environmental Consultants determined the load on the System and the primary treatment capacity required for such load. The report stated that the System was undersized insofar as any load, other than that of the residence, was connected to it and made certain recommendations.
The Respondent subsequently issued the Compliance Notice for the dual purposes of securing compliance with regulations 11, 12 and 13 of the South Australian Public Health (Wastewater) Regulations 2013 (Regulations) and to avert, eliminate or minimise a risk, or perceived risk, to public health. The Compliance Notice requires the Appellants to take one of three actions with respect to the System. The first two alternative actions require the Appellants, inter alia, to disconnect the wastewater producing facilities in the restaurant and accommodation facility from the System. The third alternative action requires the Appellants, inter alia, to replace the System with a wastewater system that is approved for the load from the wastewater producing facilities in the residence, the restaurant and the accommodation facility.
The Appellants contend that they have not breached any of the Regulations and that any perceived risk to public health arising from the System can be reasonably addressed by a requirement being imposed upon the Appellants that they cease using the restaurant and accommodation facility on the property for commercial purposes.
Whether the requirements in the Compliance Notice are reasonably required for the purpose for which the notice was issued.
Whether the requirements set forth in the Compliance Notice are unreasonable, disproportionate or excessive.
Held:
The System is not being operated in accordance with the conditions of its approval contrary to regulation 12(1)(a) of the Regulations.
The disposal of wastewater from the System, including that from the plumbing fixtures in the restaurant and accommodation facility, is not in accordance with the conditions of its approval contrary to regulation 13(2) of the Regulations.
The connection of the plumbing fixtures in the restaurant and accommodation facility to the System presents a perceived risk to public health.
The requirements in the Compliance Notice are reasonably required for the purpose for which the notice was issued.
The requirements set forth in the Compliance Notice are not unreasonable, disproportionate or excessive.
Orders:
1. The Appeal is dismissed.
2. Affirming the decision of the Respondent to issue the Compliance Notice dated 28 August 2018.
South Australian Public Health Act 2011 ss 6, 9, 32, 92, 96, 108; District Court Act 1991 s 42; Health Act 1935 ; Public and Environmental Health Act 1987 , referred to.
Registrar of Firearms v Marksman [2016] SASCFC 72; Commissioner for Consumer Affairs v McMurray [2017] SASCFC 16; House v King (1936) 55 CLR 499; R v Lavender [2005] HCA 37; Wong v Metcash Trading Australasia Pty Ltd [2003] SASC 314, considered.
KINGSBROOK SA P/L & ANOR v ALEXANDRINA COUNCIL
[2020] SADC 39Introduction
Kingsbrook SA Pty Ltd (First Appellant) is the owner and occupier of land situated at 2866 Alexandrina Road, Currency Creek (property).
The property includes a residence, an accommodation facility and a restaurant area serviced by a commercial kitchen. There is also a permanently erected marquee on the property, used for functions (the Marquee).
Christopher Norris (Second Appellant) is the sole director of the First Appellant and therefore has the management and/or control of the property.
This is an appeal under s 96 of the South Australian Public Health Act 2011 (the Act) by the Appellants against a compliance notice dated 28 August 2019 issued by the Alexandrina Council (Respondent) pursuant to s 92 of the Act (Compliance Notice).
The Compliance Notice states that it was issued for the purpose of securing compliance with the South Australian Public Health (Wastewater) Regulations 2013 (the Regulations). It further states that the Respondent considered the Appellants to be in breach of regulations 11, 12 and 13 of the Regulations, such that there was a risk or perceived risk to public health.
The Compliance Notice requires the Appellants to take one of three listed actions on or before 28 February 2020, relating to a wastewater system servicing the residence, accommodation facility and restaurant on the property (the System). The Marquee is serviced by its own wastewater system (the Marquee system).
Each alternative action as listed on the Compliance Notice requires the Appellants to either disconnect the wastewater producing facilities (fixtures and fittings) associated with the restaurant and accommodation facility from the System or replace the System.
By a Second Amended Notice of Appeal filed on 5 March 2020, the Appellants contend that the action required by the Compliance Notice is unreasonable, disproportionate and excessive. They submit that as any risk or perceived risk to public health only arises from the use of the accommodation facility and restaurant at the property, the Compliance Notice should only require that the Appellants cease using the property ‘as a restaurant and as accommodation facilities’. They further submit that this would secure compliance with any requirement imposed by or under the Act.
Further, although not particularised as a ground of appeal, the Appellants contend that insofar as the Compliance Notice imposes any requirement upon them beyond a requirement to ‘cease using the Land as a restaurant and accommodation facilities’, the Respondent has acted beyond power.
The Statutory Framework
At the relevant time, s 92(1) of the Act stated:
92—Notices
(1)A relevant authority may issue a notice under this section for the purpose of—
(a) securing compliance with a requirement imposed by or under this Act (including the duty under Part 6 or a requirement imposed under a regulation or a code of practice under this Act); or
(b) averting, eliminating or minimising a risk, or a perceived risk, to public health.
Pursuant to s 92(5)(f) of the Act:
(5)A notice under this section—
(a) …
…
(f) may impose any requirement reasonably required for the purpose for which the notice is issued including 1 or more of the following:
(i)a requirement that the person discontinue, or not commence, a specified activity indefinitely or for a specified period or until further notice from a relevant authority;
(ii)a requirement that the person not carry on a specified activity except at specified times or subject to specified conditions;
(iii)a requirement that the person take specified action in a specified way, and within a specified period or at specified times or in specified circumstances;
(iv)a requirement that the person take action to prevent, eliminate, minimise or control any specified risk to public health, or to control any specified activity;
(v)a requirement that the person comply with any specified code or standard prepared or published by a body or authority referred to in the notice;
(vi)a requirement that the person undertake specified tests or monitoring;
(vii)a requirement that the person furnish to a relevant authority specified results or reports;
(viii)a requirement that the person prepare, in accordance with specified requirements and to the satisfaction of the relevant authority, a plan of action to secure compliance with a relevant requirement or to prevent, eliminate, minimise or control any specified risk to public health;
(ix)a requirement prescribed under or for the purposes of the regulations …
(my emphasis)
Further, s 92(10) imposes a maximum penalty of $25,000 and an expiation fee of $750 if a person to whom a notice is issued under the section fails to comply with that notice, without reasonable excuse.
Requirements with respect to the operation of wastewater systems are set out in the Regulations. Regulation 4 of the Regulations stipulates that the On-site Wastewater Systems Code (the Code), as in force from time to time, is a ‘prescribed code’ for the purposes of the Regulations.
The Code sets out procedures and requirements for the design, approval, installation and operation of on-site wastewater systems and is specified to apply to any wastewater system (up to and including those of a capacity in Chapter 5) and to all alterations, additions and repairs of existing systems made after its commencement, namely on or about April 2013.
The Right of Review
The Appeal is made to the Administrative and Disciplinary Division of this Court pursuant to s 32 of the Act.
Section 42E of the District Court Act 1991 (DCA) states:
1.The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
2.The Court, on an appeal –
(a) is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
3.The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
As to s 42E(3), in Registrar of Firearms v Marksman[1], Stanley J (with whom Gray J agreed) stated:
Section 42E(3) is a mandatory provision requiring the Court on appeal to give due weight to the decision being appealed against and the reasons for it, and not to depart from the decision except for cogent reasons. There are two critical features to the operation of s 42E(3). First, the nature of the appeal being conducted by the Court is limited. The Court is not to allow the appeal from the decision appealed against except for cogent reasons. I consider that the purpose of s 42E(3) is to indicate that the appeal, while it is to be conducted in accordance with the terms of s 42E(2), is not an ordinary merits review of the decision the subject of the appeal. The Court on appeal is not to merely substitute its view for that of the original decision-maker. It is only to depart from that decision where cogent reasons exist. “Cogent” means compelling, convincing, powerful.
[1] [2016] SASCFC 72 at [315].
As outlined in Commissioner for Consumer Affairs v McMurray,[2] an appellant cannot succeed if they do not show error on the part of the decision- maker, and if error is identified, the appellant must demonstrate ‘convincingly’ that had the decision-maker proceeded correctly, they would have arrived at a different conclusion.
[2] [2017] SASCFC 16 at [82]-[84], Hinton J; Parker J agreeing.
Further, Blue J stated in McMurray:[3]
The deference to be accorded to the underlying decision on an appeal governed by s 42E depends on the nature of the asserted error in the decision and reasons for the decision.
Where the asserted error relates to the exercise of a discretion or the making of an evaluative judgment or policy decision, it will be necessary for the appellant to establish a process or outcome error of the type identified by the High Court in House v The King, and the mere establishment of a process error will not avail the appellant unless the appellant also demonstrates that there should have been a different outcome.
Where the asserted error relates to a finding on an ultimate factual issue determinative of the result, it will not be sufficient for an appellant merely to demonstrate that the judge on appeal would not have made that factual finding. It will ordinarily be necessary for the appellant to demonstrate that the finding made was not open on the material properly before the decision-maker. Particular appellate restraint will need to be exercised when the finding turns on credit. When the asserted error relates to a finding on a primary or intermediate factual issue but not an ultimate issue, but in addition the appellant will also need to demonstrate that the correct factual finding would have led to a different outcome.
Where the asserted error relates to a finding on an ultimate legal issue determinative of the result, the position is different. The appeal judge is required to determine the legal issue and if the judge concludes that the decision-maker wrongly decided the legal issue and it was determinative of the result, the appeal should be allowed. No question of deference to the decision of the decision-maker arises. Where the asserted error is of a primary or intermediate legal issue but not an ultimate issue, the appeal judge is required to determine the legal issue and then the appellant will also need to demonstrate that the correct legal position would have led to a different outcome.
[3] [2017] SASCFC 16 at [44]-[47], Hinton and Parker JJ agreeing.
Pursuant to s 42F DCA:
The Court may, on an appeal –
(a)affirm the decision appealed against;
(b)rescind the decision and substitute a decision that the Court considers appropriate;
(c)remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
Further, s 42G DCA states:
(1)The Court may, on an appeal, make any ancillary or consequential order that the Court considers appropriate.
(2)However, no order for costs is to be made unless the Court considers such an order to be necessary in the interests of justice.
Hearing
The Appeal was heard on 16 March 2020. In addition to the oral submissions of both counsel, I have received and considered Lists of Authorities and Written Submissions filed by the Appellants and the Respondent.
Ms Alison Koerner, Environmental Health Officer employed by the Respondent, gave evidence. In addition, I received the following Exhibits:
·Exhibit A1 Aerial photograph of the property;
·Exhibit R1 Appeal Book;
·Exhibit R2 Supplementary Appeal Book.
Exhibits R1 and R2 were received de bene esse. Counsel for the Appellants submitted that insofar as those exhibits contained opinions expressed by Ms Koerner as to whether the acts or omissions of the Appellants constituted breaches of the Regulations, such opinions were inadmissible.
There are various documents in Exhibits R1 and R2 containing statements made by Ms Koerner to the effect that in her and/or the Respondent’s opinion, the Appellants are in breach of their obligations under the Regulations and/or that the System is in contravention of the Regulations. The documents are admissible to explain the basis upon which the Respondent saw fit to issue the various compliance notices. It remains for the court to determine whether there has been any breach of the Regulations. As such Exhibits R1 and R2 are admitted into evidence.
Factual Background
Original Approval
On 19 December 1991, a previous owner of the property lodged an ‘Application to Install a Septic Tank System on the property’ (Application). [4]
[4] Exhibit R1 Tab 1 pp.3-8.
The Application described the premises as a three-bedroom house, intended to be the subject of full-time occupation. Relevantly the Application Form included provision for further information to be attached insofar as the application related to ‘Non-Residential Premises’ and for the provision of information as to either ‘constant’ or ‘variable’ use in those circumstances. No such additional information was attached.
The Application was approved on 14 January 1992 (Approval). The Approval was stated to be conditional upon compliance with provisions relating to the nature and capacity of the septic tank (minimum effective capacity of 3,000-litre), pump and pump sump (minimum effective capacity of 500-litre) and disposal system. The Approval also contains a handwritten notation that ‘soakage must be 50 m from any creek, dam, bore or watercourse.’
Thereafter, the System, consisting of a septic tank and soakage bed/trench, presumably in accordance with the Approval, was installed at the property.
Developments on the Property/Lapsed Approvals
On 21 July 1999, the Second Appellant lodged a Development Application with respect to the property. That application related to the conversion of an existing brick building on the property to a two-storey garage and studio. The application foreshadowed there being a ‘staff’ toilet and shower on the ground floor and a shower, toilet, hand basin and single kitchen sink on the upper level.
The plan included changes to the System. It is apparent that a meeting was held on 17 August 2000, attended by the Appellants’ architect, Chris Crabtree and two representatives from the Respondent, namely a Senior Environmental Health Officer (KV) and a Development Assessment Officer.
Relevantly the Minutes of that Meeting state that the existing septic tank appeared too small, but if confirmed to have a 3,000-litre capacity it ‘can stay for 3-bedroom usage’. As to future use, the Minutes state:[5]
If any increase load from existing use ie, from spar (sic) etc, to to (sic) go into tank or a future increase in bedrooms then capacity would have to be upgraded accordingly.
[5] Exhibit R1 Tab 7 p 35.
The Minutes show the architect advised that the Appellants had directed the studio would only be used by house occupants/staff and not additional people. In those circumstances, KV accepted that if the existing septic tank was 3,000-litre or larger then it would be sufficient to handle the new studio. However, KV stated the soakage pit was not acceptable, as it did not conform with current health regulations, and recommended an aerobic treatment unit be installed to handle waste.
On 11 September 2000, an ‘Application to Alter a Waste Control System’ at the property was lodged on behalf of the Appellants. The application described the ‘premises’ as a house, and stated that the total number of persons using the System was four. It proposed the installation of a 4,000-litre septic tank and aerobic system.[6]
[6] Exhibit R1 Tab 8 pp 38-41.
By letter dated 13 September 2000, the Respondent approved that application, subject to stated conditions, including that ‘the use of the waste control system shall not vary from that indicated in this approval and that it be completed prior to use’. The approval was to become void if the waste control system was not completed within 24 months of the date of approval.[7]
[7] Exhibit R1 Tab 8 pp 36-37.
The Appellants never installed the waste control system as approved, such that the approval lapsed.
On 24 November 2000, the Second Appellant lodged a further Development Application (Development Number 455/1034/00) with respect to the property.[8] The proposed development was said to comprise:
·Conversion of the first floor of the main residence to bed and breakfast guest accommodation, by way of incorporating three ensuite facilities.
·Addition of a single storey lounge/conservatory, with rooftop terrace at the rear of the existing main residence.
·Construction of an off-street gallery for the display of antiques.
·Construction of a small off-street wine tasting facility and adjacent toilets.[9]
[8] Exhibit R1 Tab 10 p 47.
[9] Exhibit R1 Tab 11 p 49 and Tab 12 p 51.
It was intended that events/functions would be held on the property.
The Respondent granted Provisional Development Consent with respect to the proposed development on 19 July 2001.[10]
[10] Exhibit R1 Tab 16 p 66.
It is apparent that a further Development Application was lodged by the Appellants with respect to the ‘gallery’ (Development Number 455/897/001) although the date of that application is unknown. On 22 October 2001, Katnich Dodd provided a report to the Respondent wherein it recommended that the Respondent grant provisional building rules consent with respect to that proposed development, subject to conditions including that approval of the method of disposal of sewage and sullage from the building be obtained prior to the work being completed.[11]
[11] Exhibit R1 Tab 19 pp 73-74.
Provisional Building Rules Consent was granted with respect to that proposed development on 15 November 2001.[12]
[12] Exhibit R1 Tab 20 pp 75-79.
On 12 November 2001, a further ‘Application to Alter a Waste Control System’ at the property was lodged on behalf of the Appellants. The application described the ‘premises’ as a gallery, and stated that the total number of persons using that system would be varied. It proposed the installation of a new 4,000-litre septic tank and aerobic system.[13]
[13] Exhibit R1 Tab 21 pp 82-90.
By letter dated 16 November 2001, the Respondent approved that further application, subject to stated conditions, including that ‘the use of the waste control system shall not vary from that indicated in this approval and that it be completed prior to use’. The approval was to become void if the waste control system was not completed within 24 months of the date of approval.[14] The Appellants never installed the waste control system as approved, such that this approval lapsed.
[14] Exhibit R1 Tab 21 pp 80-81.
The property was developed to enable the conversion of buildings on the property, other than the main residence, to comprise a restaurant and accommodation facility. The System installed as per the approval granted in 1992 has never been upgraded.
There is no dispute that from a date, not earlier than November 2001, up to approximately Easter 2019, the Appellants have used the property, including the accommodation facility and restaurant for commercial purposes.[15]
[15] Appellants’ Outline of Argument at [12].
The restaurant includes a commercial kitchen and laundry facilities with two double bowl sinks, a single ‘hand wash’ sink, three toilets, three hand basins, dishwasher and washing machine.[16] The accommodation facility comprises three separate units over two levels. There are three toilets, three showers, three hand basins, two kitchen sinks and one bath within the accommodation facility.[17] I will refer to these as the ‘unapproved plumbing fixtures’, being the terminology used by Ms Koerner in her evidence.
[16] Exhibit R2 at pp 14-20 contains photographs and a plan depicting these fixtures.
[17] Exhibit R2 at pp 21-28 contains photographs and a plan depicting these fixtures.
Notices Issued in 2018
After complaints arising from a function held at the Marquee in early 2018, the property was inspected by representatives of the Water Quality Unit of SA Health. Several issues were identified, including that ‘the septic tank system located near the accommodation buildings is beyond its approved capacity’ and a recommendation made that the System be replaced ‘with something large enough to accept wastewater from weddings held at the Orangerie, the restaurant, staff and accommodation.’[18]
[18] Exhibit R1 Tab 22 pp 91-92.
Subsequently the Respondent issued the First Appellant with a compliance notice dated 17 April 2018 wherein it was stated:[19]
The Council along with SA Health inspected the premises on 14 February 2018 and observed that the Wastewater Systems set up at Kingsbrook Estate are not set up in accordance with the South Australian On-site Wastewater Systems Code. Specifically, the Wastewater System at the Marquee has not received the appropriate approvals and the Wastewater System servicing the main kitchen, residence and accommodation buildings is being utilised to treat a flow of wastewater beyond the approved capacity.
[19] Exhibit R1 Tab 24 pp 97-98.
The compliance notice was issued under s 92(1) of the Act, for the purposes of securing compliance with the Regulations. The notice required particular action to be taken which included action pertaining to the System, but was subsequently varied by written notices dated 15 May 2018 and 10 October 2018, such that the action required related only to the Marquee system.[20]
[20] Exhibit R1 Tabs 24-26.
Ms Koerner explained that the notice was varied at that time based on information provided by the Second Appellant as to his intended ongoing use of the property, including the Marquee. She said that based on that information, the Respondent determined that although both the Marquee system and the System were public health risks, the Marquee system posed the greater risk. She said that given the Respondent’s limited resources, the Respondent prioritised that particular risk at that time.[21]
[21] T 40.21-32.
Ms Koerner gave evidence that with respect to the Marquee system, the Respondent became aware of the First Appellant’s use of an unapproved holding tank on the property in 2015. She said that at that time, the Second Appellant gave an undertaking that the First Appellant would not use the plumbing fixtures connected to the Marquee system. Following a novo-virus outbreak in 2017, it came to the Respondent’s attention that the Appellants had installed another unapproved holding tank and, contrary to the undertaking given, had recommenced using those fixtures.
Although there was no objection to this evidence and Ms Koerner was not cross-examined on it, Ms Koerner was not employed by the Respondent in 2015 and as such this evidence is hearsay. No documents were produced in relation to the same. In these circumstances, I have disregarded this evidence in making my findings.
Expert Report
On 10 October 2018, the Respondent issued the First Appellant with a Notice to Obtain Expert Report, pursuant to Regulation 29(1) of the Regulations, wherein it required the First Appellant to obtain an expert report from an independent wastewater engineer addressing a number of issues, including the current level and type of use of the System, whether the System was in good working order and whether it complied with relevant approvals pertaining to its installation.[22]
[22] Exhibit R1 Tab 27.
In compliance with this notice, the Respondent obtained a report prepared by Water Technology, Water Coastal and Environmental Consultants dated 19 February 2019 (the Report).[23]
[23] Exhibit R1 Tab 28.
The Report was prepared having regard to an inspection of the property undertaken by Mr Pennington on 1 February 2019, information provided by the Second Appellant at a meeting held with him and his solicitor and all available documentation pertaining to the System.
At the inspection, it was noted that the septic tank lid was buried and not exposed. As such, Goolwa Pumping Service, the contractors retained by the Appellants to remove waste from the site, were contacted to provide further information. They advised that they last pumped out the septic tank on 20 October 2015 and that it was a pre-cast concrete tank, with a capacity of either 1,600-litre or 3,000-litre, but most likely the latter.
The Report outlines the fixtures connected to the System and the Second Appellant’s description of the then current usage of the restaurant, accommodation facility and residence. From this information, the authors used the Code to determine the load on the System and the primary treatment capacity required for such load. The authors concluded that a minimum 3,000-litre septic tank would be required for the accommodation and restaurant operations, excluding the existing residence and that the combined primary capacity, including the residence, would be 5,602 litres, requiring an 8,000-litre tank.
They noted that although there were no visible signs of failure of the System, such as odour or surface wetness, there was no induct vent pipe to indicate the location of the soakage bed/trench, and they were unable to estimate its size or condition.
They stated:[24]
It is likely that due to intermittent use, combined with a low occupancy and volume of wastewater entering the system, the flow rates are considerably lower than design flows, and therefore the system has not yet failed, or showing a failed state.
[24] Exhibit R1 Tab 28 p 111.
However, they indicated that to properly inspect the System to see if it was coping it would be necessary to uncover the trenches, which would have a detrimental impact on the soakage system’s performance.
The writer of the Report expressed the opinion that the System was undersized, insofar as any load, other than that of the residence, was connected to it. It was recommended that the accommodation and restaurant be disconnected from the System.[25]
[25] Exhibit R1 Tab 28 p 112.
They recommended either the restaurant and accommodation be disconnected from the System, relieving it of that additional load and potentially retaining the integrity of the System or replacing the current existing septic tank with an 8,000-litre capacity septic tank (and/or consider a 5,000-litre holding tank).[26]
[26] In the case of each alternative, they also suggested other additional improvements to the system.
Compliance Notice Issued
Ms Koerner gave evidence that in her capacity as an Environmental Health Officer, and pursuant to her delegated authority under the Act, she made the decision to issue the Compliance Notice. She did so, having regard to the contents of the Report and having also inspected the property.
She said the Report reaffirmed what she had already suspected, namely that the System was not large enough to cope with the additional load from the unapproved plumbing fixtures, as a result of which the System could fail and cause a public health risk.[27]
[27] T 23.9-19.
The Compliance Notice stated: [28]
The Council is of the opinion, based on the report of a wastewater engineer that you commissioned and furnished to the Council, that the wastewater system servicing the restaurant, accommodation and residence buildings on the Property is being utilised to treat a flow of wastewater beyond the approved capacity and, that these circumstances give rise to a risk (or perceived risk) to public health.
[28] Exhibit R1 Tab 30 p 115.
In addition, the Compliance Notice outlined that in its opinion, the circumstances gave rise to a breach by the Appellants of their obligations under regulations 11, 12 and 13 of the Regulations and that there was a risk or perceived risk to public health, including that of occupiers of and/or visitors to the property.[29]
[29] Exhibit R1 Tab 30 p 116.
The Compliance Notice stated:[30]
[30] Exhibit R1 Tab 30 p 116.
Accordingly, you and the Company are hereby ISSUED with this Notice under section 92(1)(a) of the Act for the purposes of securing compliance with your obligations under the South Australia Public Health (Wastewater) Regulations 2013.
This Notice requires you and the Company to take the following action:
1. Disconnect all wastewater producing facilities (fixtures and fittings) associated with the restaurant and accommodation facilities on the Property from the existing wastewater system so that the existing system services the residence alone, and install a separate new onsite wastewater system that meets the requirements of the SA Health On-site Wastewater Systems Code on the Property to service the restaurant and accommodation facilities (note that approval of the new system must be received from Council before installation);
OR
2. Disconnect the wastewater producing facilities (fixtures and fittings) associated with the restaurant and accommodation facilities on the Property from the existing wastewater system so that the existing system services the residence alone, and immediately cease (or cause to be ceased) all activities in and from the restaurant and accommodation facilities that generate, or cause to be generated, wastewater from these facilities for so long as these facilities are not connected to an approved wastewater system;
OR
3. Replace the existing wastewater system on the Property with a single onsite wastewater system that meets the requirement of the SA On-site Wastewater Systems Code and that is designed and approved to deal with the combined loads from the residence, restaurant and accommodation (note that an application for approval for the new system must be received and approved by the Council before installation).
You must comply with the requirements of this Notice by carrying out at least one of the above options on or before 28 February 2020.
Ms Koerner gave evidence that in order to disconnect the wastewater producing facilities associated with the restaurant and accommodation facility, either each individual facility could be disconnected from the pipes, or alternatively the main drain could be ‘capped off’ from the fixtures to the septic tank. She described the latter alternative as a ‘fairly easy’ task, involving a plumber digging up the main drain, cutting a section out and then putting a cap on each end. The former alternative would involve much more work as each individual fixture would need to be cut off from the system.[31] This evidence was not challenged.
[31] T 26.9-28.
In a Statement dated 14 November 2019, Ms Koerner explained that she had assessed the System as constituting a risk to public health, warranting the issue of the Compliance Notice. By way of summary she stated:
·notwithstanding the System was approved for residential use only, it had also been used to service wastewater generated from commercial activities occurring on the property.
·there had been numerous plumbing fixtures connected to the System, without approval, since the System was approved in 1992, which, in her view, was an ‘alteration’ to the System without approval, contrary to the Regulations.
·the changes in the System had resulted in a change in the nature of the wastewater disposed of via the System, to include commercial grade effluent, with higher levels of solids and nutrients, which could clog the soil and render it unable to properly treat the wastewater before it reached the ground water table. In addition, the changes to the System had increased its capacity to beyond its maximum capacity. She considered that as a result, it was likely the System would fail, if it had not already, thus constituting a public health risk.
Ms Koerner elaborated on these matters in her evidence. She explained that the System was not sized to cope with the load generated by the unapproved commercial fixtures in the restaurant and accommodation facility. She said it was irrelevant whether or not these fixtures were currently being used for commercial purposes, as they were designed for such use, and could be so used if they remained.[32]
[32] T 25.26-26.2.
She said the System was not big enough to cope with the load coming from the fixtures (other than those in the residence) and described her concern that the System could fail and cause a public health risk. This could occur in several different ways. The flow could be so high that the water started coming to the surface out of the septic tank or the soakage area, such that people could come into contact with raw effluent, which carried diseases.[33]
[33] T 23.20-32.
Alternatively, the water could go down, further into the ground and into the water table. She said the water table in the area was known to be high, there were bores located about 100 m away from the residence and the property was close to the River Murray, thus posing a risk that untreated water would reach those catchments.[34] She noted that this was something that could not been seen, and that there was therefore the possibility that the System had already failed in that way, being something that could not be fixed retrospectively.[35]
[34] T 23.33-24.2.
[35] T 24.3-13.
As to the Appellants’ offer not to use the accommodation facility or restaurant for commercial purposes, Ms Koerner said that the fixtures were unapproved and that it was dangerous to leave them connected to the System, as the Appellant ‘could start using them again at any time’ but, importantly:[36]
If the property changes hands, who knows who’s going to move in there and what is going to happen with the system at that point.
[36] T 30.3-5.
In cross-examination, Ms Koerner agreed with a proposition that had the Appellants proceeded with the development application (455/1034/00) which involved converting the second-story of the main residence to incorporate three ensuite facilities for commercial accommodation purposes, there would be no conceptual difference in terms of the increased load from those fixtures, as compared with the load from those fixtures if located in a separate building.[37]
[37] T 32.14-21; T 33.1-9.
Ms Koerner was asked in cross-examination, what effect it would have on the System, if the assumptions made by the authors of the Report as to the average daily number of users over a 7-day period plus staff (P1) and the highest daily number of users over a 7-day period, plus staff (P2) dropped to zero with respect to the accommodation facility and the restaurant.[38] She answered:[39]
That means, well, if those numbers dropped to zero, the system would be enough to cope with just the house, it would only be accepting load from the house, but these fixtures will still be attached to it, and still can be used at any time. And I don’t believe, if they’re still attached, that they – there’s still such a high likelihood potential that be used for this kind of use.
[38] As per the table in Exhibit R1 Tab 28 p 111.
[39] T 44.9-16.
She agreed that it was not the existence of the fixtures in the accommodation facility and the restaurant that caused the risk to public health, but the use of those fixtures.[40]
[40] T 44.30-34.
The following exchange occurred in cross-examination:[41]
QBut, and in your mind, the concepts of use and potential load aren’t linked.
AWell, not exactly. So, use can be right now, but there’s still the potential, even if there’s an undertaking ‘I won’t use it now’, for this. He could sell the house in one year, and someone else could move in and not realise that the system isn’t sized big enough to cope with all of these fixtures. So it’s still a risk there, while they exist, connected to the system.
[41] T 49.21-30.
A proposition was put to Ms Koerner that the risk arose from the Appellants using the fixtures for commercial purposes. She appears to have agreed with that proposition, although the transcript reveals that Ms Koerner responded before the question had been completely asked and before the question had been phrased to refer not only to the ‘use’ of the fixtures, but to their use for the purposes of a restaurant and accommodation facility.[42]
[42] T 49.31-50.9.
In re-examination, Ms Koerner was asked a series of questions relating to the potential for the System to fail, in any event, due to its prior damage through the commercial use of the unapproved plumbing fixtures. Ms Koerner was asked if such damage had occurred, could the water discharged through the residence still not be treated properly, to which she replied ‘yes’.[43] She also agreed that such risk remained, even if the unapproved plumbing fixtures were not used.
[43] T 51.24-52.16.
In my view that evidence does not directly assist me to resolve the issues in dispute on this Appeal, other than serving to emphasise the concerns expressed by Ms Koerner as to the public health risks potentially posed by the System. The requirements imposed by the Compliance Notice do not extend to prohibiting the ongoing use of the System, rather the requirements are aimed at ensuring that the unapproved plumbing fixtures are not able to be used, unless they are connected to an alternative approved wastewater system.
Grounds of Appeal
The Second Amended Notice of Appeal particularises the Grounds of Appeal in the following terms:[44]
In all of the circumstances the orders sought by the Respondent are unreasonable, disproportionate and excessive having regard to the fact that:
30.1.any risk or perceived risk to public safety is only alleged to arise from the use of the Land as a restaurant and for accommodation facilities; and
30.2securing compliance with a requirement imposed by or under the Act or averting, eliminating or minimising a risk or a perceived risk, to public health could be achieved by an order that the Appellants cease using the Land as a restaurant and as accommodation facilities.
[44] Second Amended Notice of Appeal at [7] and [30].
In the Outline of Argument, the Appellants state: [45]
The Appellants consent to a portion of the second alternative requirement being that the Appellants “immediately cease (or cause to be ceased) all activities in and from the restaurant and accommodation facilities that generate, or cause to be generated, wastewater.”
[45] Appellants’ Outline of Argument at [4].
However, despite that apparent concession, it is clear from the manner in which the appeal was advanced that in fact, the appellants only consent to a requirement being imposed that they ‘immediately cease (or cause to be ceased) any commercial activities in and from the restaurant and accommodation facilities that generate, or cause to be generated, wastewater.’
It was quite clear that the Appellants had brought the Appeal because they wish to continue to use the unapproved plumbing fixtures, but for domestic rather than commercial purposes.
In the Outline of Argument, the Appellants submit that the ‘balance of the requirements’ in the Compliance Notice are:[46]
1Beyond the power of the Respondent;
2Unduly excessive and oppressive; and
3Not necessary for averting, eliminating or minimising a risk or perceived risk to public health.
[46] Appellants’ Outline of Argument at [5].
The Appellants submitted that there had been no breach of any of the Regulations by the Appellants, so as to enliven the power to issue a Notice under s 92(1)(a) of the Act. In addition, they submitted that the evidence, taken at its highest, only established that ‘if the accommodation and restaurant uses were to cease, that there would be no risk or perceived risk to public health’.[47] It was submitted that there was no evidence of any risk to public health in ‘the operation of Site’ or in using the facilities in the buildings comprising the accommodation facilities and restaurant in the ordinary domestic course.[48]
[47] Appellants’ Outline of Argument at [20].
[48] Appellants’ Outline of Argument at [19] and [46].
The Appellants submitted that, in accordance with s 92(5)(f) of the Act, the requirements of the Compliance Notice may only validly seek to achieve the purposes set out in s 92(1) of the Act and that those purposes could be achieved if the Appellants were required to ‘cease using the Land as a restaurant and as accommodation facilities’.
The Respondent submitted that s 92(1)(a) of the Act did not include, as a precondition to the issue of the Compliance Notice, a requirement that the Respondent establish the Appellants had acted in breach of the Regulations (or the Act or Code), albeit the Respondent maintained a breach (or breaches) had occurred. Rather, it was submitted that, as specified on the notice, the Respondent had the power to issue a notice pursuant to s 92(1)(a) to ‘secure compliance’ with a requirement imposed by or under the Act, or the Regulations, or the Code.
Further, the Respondent submitted that unless the Appellants complied with one of the three alternative requirements listed on the Compliance Notice, there remained a risk or perceived risk to public health, as the System was undersized to cope with the additional load imposed upon it by the connection of the unapproved plumbing fixtures, and could fail, if it had not already failed.
They submitted that if the Appellants wished to continue using the unapproved plumbing fixtures they could do so lawfully by connecting them to a new wastewater system that complied with the Regulations and the Code.
The Respondent submitted that that there were no cogent reasons for the Court to depart from its decision to issue the Compliance Notice in the terms as issued. It further submitted that no error, in the House v King[49] sense, had been demonstrated.
[49] (1936) 55 CLR 499, 505.
Preliminary Observations and Findings
There is no current operative wastewater approval for the property, other than the approval issued in 1992.[50]
[50] T 21.6-12.
There is no dispute, and I find, that the Respondent is a ‘relevant authority’ within the meaning of the Act. Further, there is no dispute and I find that Ms Koerner is an ‘authorised officer’ within the meaning of the Act.
The Compliance Notice expressly states that it was issued ‘to secure compliance with the Act’. I accept Ms Koerner’s evidence that at the time she issued the Compliance Notice on behalf of the Respondent, and thereafter, she believed that the installation of the unapproved plumbing fixtures and their connection to the System, amounted to an alteration to the System, being a breach of the Regulations.
It is also clear from Ms Koerner’s evidence, which I accept, that at the time she issued the Compliance Notice, in her view, a risk to public health arose because of the fact the System was being used to treat a flow of wastewater beyond its approved capacity and for commercial purposes, meaning the nature of the wastewater that required treatment was different.
Counsel for the Appellant cross-examined Ms Koerner with a view to establishing that she had not issued the Compliance Notice because of any risk or perceived risk to public health. He made reference to the lack of any mention in an earlier compliance notice dated 17 April 2018, subsequently amended on 10 October 2018, to such a risk.
I accept Ms Koerner’s evidence that in 2018, the Respondent’s attention was directed first at addressing issues arising from the Marquee system. I further find, that having regard to the contents of the ‘Notice to Obtain Expert Report’ dated 10 October 2018, the Respondent suspected, at that time, that the System was ‘adversely affecting or threatening public or environmental health’.[51]
[51] Exhibit R1 Tab 27 p 107.
I find that when the Compliance Notice was issued, it was purportedly issued for a dual purpose, namely to secure compliance with the Act and to avert, eliminate or minimise a risk, or perceived risk, to public health, albeit these purposes were inter-related. The issue then arises as to whether the circumstances were such as to empower the Respondent to issue the notice under either s 92(1)(a) or (b) of the Act.
Section 92(1)(a) – Securing Compliance with the Act, Regulations and Code
The Respondent submitted that in applying the principles in ss 6 and 9 of the Act, s 92(1)(a) of the Act enables a notice to be issued in anticipation of a breach of the Act, the Regulations or the Code.
Pursuant to s 9 of the Act, administrative decisions and actions should be taken after considering (insofar as is relevant) the means by which public health risks can be prevented and avoided.
Further, s 6 of the Act states:
6—Precautionary principle
(1)If there is a perceived material risk to public health, lack of full scientific certainty should not be used as a reason for postponing measures to prevent, control or abate that risk.
(2)In the application of this principle, decision‑making and action should be proportionate to the degree of public health risk and should be guided by—
(a) a careful evaluation of what steps need to be taken to avoid, where practicable, serious harm to public health; and
(b) an assessment of the risk‑weighted consequences of options; and
(c) an aim to ensure minimum disruption to an individual's activities, a community's functioning and commercial activity consistent with providing any necessary protection from identified public health risks.
The Respondent submitted that, in any event, the First Appellant was in breach of regulations 11, 12 and 13. The Appellants denied any alleged breach.
The Appellants submitted that as regulations 11, 12 and 13 were penal provisions, the Court should interpret them strictly and in favour of the person potentially affected by the provision.[52]
[52] R v Lavender [2005] HCA 37 at [88] per Kirby J.
However, the Regulations are made under the Act, the objects of which include, inter alia, to promote the health and wellbeing of individuals and the community, to protect individuals and communities from risks to public health and to ensure, so far as is reasonably practicable, a healthy environment for all South Australians. Thus, the legislation contains both beneficial and penal provisions, with those objects in mind.
As such, a strict construction of the Regulations should not be adopted so as to deprive the public from the protection the legislature intended be afforded by it.[53]
Regulation 11
[53] Mathews v Foggitt Jones Ltd (1925) 37 CLR 455; Waugh v Kippen (1986) 160 CLR 156.
Regulation 11(1) of the Regulations states:[54]
[54] Noting that the Respondent did not rely on Regulation 11(2).
11—Wastewater works
(1)A person undertaking wastewater works or causing wastewater works to be undertaken must ensure that the following requirements are met:
(a) in the case of the installation of an on‑site wastewater system, the system must be the subject of a product approval;
(b) in any case, the works must be undertaken in accordance with—
(i)a wastewater works approval for the works; and
(ii)the prescribed codes to the extent that they are applicable.
Maximum penalty: $5 000.
Expiation fee: In the case of an offence against paragraph (b)(i) comprising a contravention of a prescribed expiable condition—$315.
The Regulations contain the following definition:
wastewater works means—
(a)the installation of a wastewater system (including a temporary system) or part of a community wastewater management system; or
(b)the alteration of a wastewater system involving—
(i) a change to the capacity of the system; or
(ii) a change in the type of system used for collecting or managing wastewater; or
(c)the decommissioning of a wastewater system (excluding a temporary system); or
(d)the connection of a wastewater system to a community wastewater management system or the disconnection of a wastewater system from a community wastewater management system; or
(e)the connection of a community wastewater management system to SA Water sewerage infrastructure or the disconnection of a community wastewater management system from SA Water sewerage infrastructure;
Further, section 3(5) of the Act states:
For the purposes of this Act, a person may cause something if he or she—
(a)contributes to something happening or proceeding, or allows or permits something to happen or proceed; or
(b)contributes to the continuation of a condition for which the person is responsible, or allows or permits a condition for which the person is responsible to continue.
Ms Koerner gave evidence that a ‘wastewater system’, such as the System, comprised a number of elements, including the various plumbing fixtures and the septic tank and soakage pit/trench. [55]
[55] T 18.6-32.
The Respondent submitted the plumbing fixtures captured and collected the wastewater, whereas the tank and pit managed the wastewater as collected, such that they were an integral part of the wastewater system.
The Respondent submitted that the First Appellant was in breach of Regulation 11 in that it was causing ‘wastewater works’ to be undertaken on the property, other than in accordance with a wastewater approval for the works, in that it had changed the capacity of the System by connecting the unapproved plumbing fixtures to the System and/or that it had changed the type of system used for the collection or management of wastewater, and that the breach was of a continuous nature.
The First Appellant submitted that no ‘wastewater works’ within the meaning of the Act, had been undertaken by it, such that there had not been a breach of the Regulation. In the alternative, it submitted that at its highest, the Respondent’s case could only be that while the Appellants were using the accommodation facility and restaurant for commercial purposes, they were effecting a change to the ‘capacity’ of the wastewater system.
The Appellants submitted that the plumbing fixtures were not part of the ‘wastewater system’ on the property, as defined, and that what the regulation intended to address was changes to the ‘type’ of wastewater system, such as a septic tank or aerated system or aerobic system.
Section 3 of the Act contains the following relevant definitions:
wastewater system means a system for collecting and managing wastewater (including through treatment, reuse and disposal), whether or not connected to the undertaking within the meaning of the Sewerage Act 1929.
The Regulations contain the following definition:
wastewater system means—
(a)an on‑site wastewater system; or
(b)a community wastewater management system;
There was no dispute that the System could only be an ‘on-site wastewater system’, as it was not a ‘community wastewater management system’.
Regulation 5 states:
5—On‑site wastewater systems
(1)For the purposes of these regulations, an on‑site wastewater system is a system used on premises for the on‑site collection and management of wastewater generated at the premises where—
(a) the wastewater collected and managed is predominantly—
(i)human waste either alone or in combination with water; or
(ii)water that has been used in washing, laundering, bathing or showering; or
(iii)water containing food or beverage waste; or
(iv)water containing other trade waste; or
(v)a combination of the above; and
(b) some or all of the wastewater is reused or disposed of by means other than disposal to a community wastewater management system or to SA Water sewerage infrastructure,
and includes any associated irrigation or other system for the disposal of the wastewater on land other than that from which the wastewater is collected.
(2)An on‑site wastewater system includes (but is not limited to) a septic tank, waterless composting toilet, or an aerated wastewater treatment system, to which AS/NZS 1546 applies.
(3)An on‑site wastewater system may, but need not, be connected to a community wastewater management system or to SA Water sewerage infrastructure.
In my view, the role and function of the plumbing fixtures in the System is to generate or produce wastewater of the types as referred to in Regulation 5(1)(a), rather than to collect wastewater as submitted by the Respondent. In this respect, the inclusion of the words ‘waterless composting toilet’ in Regulation 5(2), rather than any toilet, makes it clear that Parliament did not intend ordinary plumbing fixtures, such as toilets, baths, showers, sinks etc to be included in the definition of ‘wastewater system’ under the Regulations. A waterless composting toilet does more than just generate wastewater, it collects and manages it, as does a septic tank.
As such, I agree with the Appellants’ submission that the plumbing fixtures are not part of a ‘wastewater system’ as defined by the Regulations.
It follows that I agree with the Appellants’ submission that in connecting the unapproved plumbing fixtures to the System, the First Appellant has not caused the ‘wastewater system’ to be altered, by changing the ‘type of system’.
As such, the remaining issue to be determined is whether the connection of the unapproved plumbing fixtures to the System constitutes ‘wastewater works’ as it is ‘the alteration of a wastewater system’ involving a ‘change to the capacity of the wastewater system’.
Regulation 3(2) states:
For the purposes of these regulations, the capacity of a wastewater system is to be determined in accordance with the prescribed codes and is expressed as a number of equivalent persons (EP) or a number of litres.
The minimum effective capacity of the System is, and, always has been, 3000-litre.[56] In my view, while the connection of the unapproved plumbing fixtures to the System has resulted in an increase in the potential flow of wastewater into the System, meaning it is now required to deal with flows in excess of its capacity, that does not, of itself, involve an ‘alteration’ of the ‘wastewater system’ (as defined, and therefore not including the plumbing fixtures) involving a change ‘to the capacity’ of the wastewater system, which has always been a capacity of 3,000-litre (or 6 EP) and not more.
[56] Exhibit R1 Tab 1 p 1 and p 4; Tab 28 at p 111.
An example of an alteration to the ‘capacity’ of the wastewater system is the change in septic tank size from 3,000-litre to 4,000-litre as was proposed by the application made on 12 November 2001, which alteration was approved, but never implemented, such that the approval lapsed.
I am not satisfied that the First Appellant (and/or the Second Appellant) has breached or is in breach of regulation 11 of the Regulations.
Regulation 12
Regulation 12 of the Regulations states:
12—Operation, maintenance and servicing of wastewater systems
(1)The operator of a wastewater system must ensure that the system is operated, maintained and serviced in accordance with—
(a) any conditions of a wastewater works approval relating to the system (whether granted before or after the person became the operator of the system); and
(b) the prescribed codes to the extent that they are applicable.
Maximum penalty: $5 000.
Expiation fee: In the case of an offence against paragraph (a) comprising a contravention of a prescribed expiable condition—$315.
(2)A person who maintains or services a wastewater system must do so in accordance with—
(a) any conditions of a wastewater works approval relating to the system; and
(b) the prescribed codes to the extent that they are applicable.
Maximum penalty: $5 000.
Expiation fee: In the case of an offence against paragraph (a) comprising a contravention of a prescribed expiable condition—$315.
The Respondent contended that the Approval for the System was subject not only to the conditions as expressly stated therein, namely upon compliance with provisions relating to the minimum effective capacity of the septic tank, the nature and capacity of the pump and pump sump and the size, depth and location of the soakage trench, but was also implicitly conditional upon the supporting documentation (Application) upon which it was based.
Ms Koerner gave the following evidence-in-chief with respect to the Approval:[57]
Q.Is there anything in particular in relation to that approval that is worth noting.
A.Its size for a house only. So 3000 l is the size of a septic tank for a house only, a residential dwelling. Also the soakage size is only sized for that size capacity, it's not sized to be larger than a house capacity.
Q.When you say it's not sized anything beyond the house, why do you say that. Where does that come from.
A.Because the system has to be large enough to cope with the flow of water that's coming through it to be able to treat it properly before it's disposed of into the soil. And if it's too small, particularly with the soakage area, the water will flow out of the soakage area and through the soil too fast and it won't get time to be treated in the soil because that's how it gets treated. The bacteria in the soil treat the wastewater when it comes out of the trench and if too much is coming out, it will just flow straight through and not get treated properly and it could reach the water table without being treated properly or it could come to surface without being treated properly.
[57] T 19.5-26.
She said that the Approval was for a wastewater system for a residential house, being a system designed to have a minimum capacity of six equivalent persons (6 EP) as per the Code.[58]
[58] Clause 5.1 of the Code states ‘On-site wastewater systems for residential premises must be designed for a minimum capacity of six equivalent persons (EP)’.
In cross-examination, the following exchange occurred:[59]
[59] T 30.32-31.22.
Q.Could I take you to tab 1. In the approval in tab 1, can you see any conditions.
A.Yes.
Q.Where's the condition say -
A.'The approval of the system is conditional upon compliance with the following provisions; minimum effect if the capacity of the septic tank is 3000 litres'. That's sized for a residential dwelling.
Q.Where does it say that, sorry, just slow down. So where does it say 'size for residential -
A.When you're sizing - so, it doesn't say it there, but in sizing the system and the person approving this system, it's sized with that capacity in mind.
Q.So it doesn't say that though.
A.It doesn't say that.
Q.Are there any other conditions.
A.Also I would say the size of the soakage is another condition. It's conditional on the amount of water that was applied for to be approved, being in accordance with this approval and being suitable for that size.
Q.So the conditions you can identify are the size of the septic tank and the size of the soakage area.
A.Yeah.
Q.And you can't identify any other conditions, can you.
A.Let me have a look. Yes, I -
Q.People who -
HER HONOUR: Just let her answer the question.
A.Not specifically written there.
The Appellants argued that the Approval was issued under the Health Act 1935 and the regulations thereunder, being the Health Regulations 1969. It was submitted that such regulations did not provide for conditional approvals, as occurred under the current legislative framework, and the framework in existence at the time the subsequent approvals were issued by the Respondent, all of which contained numerous express conditions.
The Appellants’ List of Authorities refers to Regulation 81 of the Health Regulations 1969, although no specific submissions were made with respect to that regulation. I note that at the relevant time, that regulation gave the then relevant authority the power to withdraw or cancel any permit to use a septic tank in its uncontrolled discretion, being a significantly broader power than that provided for under the Regulations.
The Approval was granted based on the information contained in the Application as to the nature of the premises required to be serviced by the wastewater works. As such, in my view, it is implicit that that Approval is subject to a condition which restricts its use to that as set forth in the Application. Put another way, the reason why it is necessary for wastewater works to be approved, as at 1992 and as at present, is to ensure that the wastewater system installed is adequate for its intended purpose, as there are significant risks to public health in the event the system is inadequate, as outlined by Ms Koerner. As such, it is implicit that a condition of the Approval is that the wastewater system is used for the purpose as outlined in the application upon which the approval was based.
I find that it was a condition of the Approval that the System be used to service premises as described therein, namely a three-bedroom house to be used for residential purposes.
I further find that insofar as the System is now required to service the residence, the accommodation facility and the restaurant, in that plumbing fixtures from all three buildings are connected to the System, and therefore capable of being used to generate wastewater, it is not being operated in accordance with the conditions of the Approval, in breach of regulation 12(1)(a) of the Regulations.
Regulation 13
The Respondent submitted that the First Appellant had breached Regulation 13(2) of the Regulations, which states:
(2)A person must not reuse or dispose of wastewater from a wastewater system except in accordance with—
(a) any conditions of a wastewater works approval relating to the system; and
(b) the prescribed codes to the extent that they are applicable.
Maximum penalty: $5 000.
Expiation fee: In the case of an offence against paragraph (a) comprising a contravention of a prescribed expiable condition—$315.
It was submitted that the Approval was conditional upon the System receiving and disposing of wastewater only from the three-bedroom house (residence) on the property, and insofar as the unapproved plumbing fixtures were connected to the System, there was a breach of this regulation. Put another way, the Respondent submitted that this regulation required the wastewater on the property to ‘only be disposed of via an onsite wastewater system in accordance with the approval for that system’.
The Appellants argued, as per regulation 12, that the Approval for the System did not contain any conditions, meaning this regulation could not be breached by either of the Appellants. I disagree with that submission.
The Approval of the System was conditional upon it being used to dispose of wastewater being generated from the premises as described on the Application, namely a three-bedroom house used for residential purposes only. The nature of the premises governed the size not only of the approved septic tank, but of the soakage trench.
Insofar as the First Appellant has disposed of wastewater, via the System, from premises other than those described on the Application, namely a three-bedroom residence, upon which the Approval was based, it is in breach of regulation 13(2) of the Regulations.
Summary
The Respondent had the power to issue the Notice pursuant to s 92(1)(a) of the Act to secure the First Appellant’s compliance with regulations 12(1)(a) and 13(2) of the Regulations.
Section 92(1)(b)
Ms Koerner gave evidence, which I accept, that the wastewater system on the property needs to have the capacity to cope with the flow of water that is coming through it in order to treat the water properly. This is to avoid it coming to the surface, untreated, or going underground and into catchments. The bacteria in the soil treat the wastewater, and if too much water is coming through the soil, this gives rise to a risk, or a perceived risk, to public health.
The authors of the Report expressed the opinion that the System is ‘undersized if any additional load is connected’ to it.
Ms Koerner gave evidence that insofar as the unapproved plumbing fixtures remained connected to the System, being commercial fixtures and fittings, such that they are able to be used, whether by the Appellants or any subsequent purchaser of the property, the System was undersized and could fail, causing a public health risk.[60]
[60] T 22.13-23.19.
I accept Ms Koerner’s evidence. In any event I note s 108 of the Act, which states:
108—Evidentiary provision
(1)In any proceedings, if the court is satisfied that a designated entity has assessed a risk to public health in connection with the administration or operation of this Act, the court must, in the absence of proof to the contrary, accept that assessment as evidence of the fact that a risk to public health existed or has occurred and, insofar as may be reasonably demonstrated by that assessment, the extent or significance of the risk.
(2)In this section—
designated entity means—
(a) the Chief Public Health Officer; or
(b) an authorised officer; or
(c) a council.
There was no evidence called to establish ‘proof to the contrary’ of the opinion as expressed by Ms Koerner.
Summary
The Respondent had the power to issue the Notice pursuant to s 92(1)(a) on the basis that the First Appellant was in breach of regulations 12(1)(a) and 13(2) of the Regulations and/or pursuant to s 92(1)(b), to avert, eliminate or minimise a perceived risk to public health.
Section 92(5)(f) of the Act – ‘reasonably required’
Pursuant to s 92(5)(f) of the Act, a notice issued under that section may impose ‘any requirement reasonably required for the purpose for which the notice is issued’, including a requirement that a person take specified action in a specified way.
I am satisfied that the Compliance Notice was issued for the dual purposes of securing compliance with regulations 12 and 13, and to avert, eliminate or minimise a risk or perceived risk to public health.
Unless the unapproved plumbing fixtures are disconnected from the System, the First Appellant will remain in breach of regulation 12 in that the System will be being operated other than in accordance with the conditions of the Approval.
Unless the First Appellant ceases all use, not just commercial use, of the unapproved plumbing fixtures, the First Appellant will be disposing of wastewater, via the System, other than in accordance with the conditions of the Approval, in breach of regulation 13.
Having regard to the findings outlined in the Report and the evidence of Ms Koerner, I am satisfied that the System is undersized if any additional load, beyond that of the residence, ‘is connected’ to it, such that there remains a perceived risk to public health unless the unapproved plumbing fixtures are disconnected from the System.
Further, I accept Ms Koerner’s evidence that the use of the unapproved plumbing fixtures for commercial purposes, whether now, or at some time in the future, creates an additional concern, beyond that of an increased load, namely a change in the type of wastewater being disposed of by the System. I accept Ms Koerner’s evidence that such water contains higher levels of fats, oils and solids than that in residential wastewater, and that these can clog the soil and the septic tank. I accept Ms Koerner’s evidence that unless the unapproved plumbing fixtures are disconnected from the System, the risk that those fixtures, which were designed for commercial use, will be used for such a purpose, remains.
I reject the Appellants’ contention that the requirements imposed by the Compliance Notice are not reasonably required for the purposes for which that notice was issued.
It follows that I disagree with the Appellants’ contention that imposing a requirement simply preventing the Appellants from using the unapproved plumbing fixtures for commercial purposes, is all that is reasonably required by the Compliance Notice, having regard to the purposes for which it was issued.
By way of further observation, I am satisfied that the Appellants were aware of a necessity to increase the capacity of the septic tank, at the very least, in conjunction with the proposed development of the property at the time the ‘Application to Alter a Waste Control System’ was lodged on 11 September 2000. I am satisfied that at that time they knew, from what occurred at the meeting on 17 August 2000 and the application lodged on their behalf thereafter,[61] that the System did not have the capacity to properly treat a load in excess of that of the property’s then use, namely as a 3-bedroom residence, and that the soakage trench needed to be replaced to conform with current health regulations.
[61] Exhibit R1 Tab 7 p 35; Tab 8 pp 38-41.
The Appellants lodged a further ‘Application to Alter a Waste Control System’ on 12 November 2001, being after Katnich Dodd provided a report to the Respondent recommending a grant of provisional building rules consent with respect to Development number 455/897/001, wherein they stated; ‘approval of the method of disposal of sewage and sullage from the building shall be obtained prior to work being commenced’.[62]
[62] Exhibit R1 Tab 19 p 73.
The Appellants knew that in undertaking the proposed development they were required to comply with the Public and Environmental Health Act 1987, with respect to any wastewater system at the property. Despite this, the Appellants undertook the development, and, by their own admission, have used the property and the unapproved plumbing fixtures for many years, for commercial purposes, and have never upgraded the System.
The Appellants submitted that it must be assumed that the Appellants will comply with the law, as outlined in Wong v Metcash Trading Australasia Pty Ltd,[63] and thus it must be assumed that the Appellants would comply with a requirement, if imposed, that they cease using the unapproved plumbing fixtures for commercial purposes.
[63] [2003] SASC 314, 329.
Having regard to all of the evidence, and irrespective of whether the First Appellant has breached regulations 12 and 13 of the Regulations, I further find it was not unreasonable for the Respondent to take into account the Appellants’ conduct as outlined in paragraph 158 herein, in imposing the additional requirement that all use of such fixtures cease, unless and until they are connected to a wastewater system that complies with the Code. [64] In my view, this can only be reasonably achieved by the Appellants taking one of the three alternative actions as listed on the Compliance Notice.
[64] Noting that in making this finding I have disregarded the hearsay evidence given by Ms Koerner with respect to any purported non-compliance by the Appellants with previous notices issued pertaining to the Marquee system and/or suspicions she has as to the use of the unapproved plumbing fixtures for purposes relating to the commercial use of the Marquee.
Unreasonable/Disproportionate/Excessive
Similar considerations arise with respect to this ground of appeal and no other submissions specifically directed to this ground of appeal were advanced.
The Second Appellant did not give evidence, nor was any documentary evidence tendered, addressing the practical impact or financial burden imposed upon the First Appellant by any of the three alternative requirements set forth in the Compliance Notice.
The only evidence on that issue was Ms Koerner’s evidence as to how the unapproved plumbing fixtures may be disconnected from the System. I accept Ms Koerner’s evidence that it is a fairly easy task for a plumber to disconnect the unapproved plumbing fixtures from the System by digging up the main drain, cutting a section out and putting a cap on each end.
Further, the Compliance Notice foreshadows that the Appellants may wish to use the unapproved plumbing fixtures and does not insist on the removal of those fixtures. Rather the notice gives the First Appellant the option of either installing a new wastewater system that meets the requirements of the Code to service the wastewater producing facilities from the restaurant and accommodation facilities or to replace the System, with a single wastewater system designed and approved to deal with the combined loads from the residence, the restaurant and the accommodation facility.
The Compliance Notice does not prevent the Appellants from continuing to use the unapproved plumbing fixtures, provided they are connected to approved wastewater systems. It ensures that if those fixtures are to be used, their use will not compromise public health and will not involve any breach of the Regulations.
Summary of Findings
The System is not being operated in accordance with the conditions of its approval contrary to regulation 12(1)(a) of the Regulations.
The disposal of wastewater from the System, including that from the unapproved plumbing fixtures, is not in accordance with the conditions of its approval contrary to regulation 13(2) of the Regulations.
The connection of the unapproved plumbing fixtures to the System presents a perceived risk to public health.
The requirements in the Compliance Notice are reasonably required for the purpose for which the notice was issued.
The requirements set forth in the Compliance Notice are not unreasonable, disproportionate or excessive.
I am not satisfied the Tribunal made an error of the type outlined in House v King.[65]
[65] (1936) 55 CLR 499, 505.
I am not satisfied that there are cogent reasons to depart from the decision of the Respondent, namely the decision to issue the Compliance Notice including the requirements contained therein.
Orders
1The Appeal is dismissed.
2The decision of the Respondent to issue the Compliance Notice dated 28 August 2019 is affirmed.
3I will hear the parties as to costs.
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