OLSEN and CITY OF KWINANA
[2016] WASAT 75
•23 JUNE 2016
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: WASTE AVOIDANCE AND RESOURCE RECOVERY ACT 2007 (WA)
CITATION: OLSEN and CITY OF KWINANA [2016] WASAT 75
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 13 JUNE 2016
DELIVERED : 13 JUNE 2016
PUBLISHED : 23 JUNE 2016
FILE NO/S: CC 1459 of 2015
BETWEEN: BRYAN OLSEN
Applicant
AND
CITY OF KWINANA
Respondent
Catchwords:
Installation of wastewater disposal system Policy of local authority to restrict certain wastewater disposal systems Absence of approval of a new wastewater disposal system
Legislation:
City of Kwinana Town Planning Scheme No 2
Health (Treatment of Sewerage and Disposal Effluent and Liquid Waste) Regulations 1974 (WA), reg 4(1), reg 7(1)
Health Act 1911 (WA), s 107(2)(a), s 344A(2)
Waste Avoidance and Resource Recovery Act 2007 (WA), s 61(5)(a)
Water Services Act 2012 (WA)
Result:
Application dismissed
Summary of Tribunal's decision:
The applicant sought approval to install an Aqua Nova 2000 Aerobic Treatment Model 80100 wastewater treatment system at his rural property. The respondent refused approval on the basis that the Aqua Nova had not been approved as a phosphorous retention system. The applicant said that the Aqua Nova had been approved for use within Western Australia and there was no notification that the system could not be used within the location of the Peel water catchment area. The Tribunal found that the policy of the respondent to require wastewater disposal systems to be nutrient retentive, fell within the powers of the respondent and should be adhered to. The property of the applicant is situated within a sensitive water catchment area and there is a public interest to protect, as far as is possible, the discharge of nutrients within the water system.
The Tribunal, however, raised several questions: for example, about how the respondent could have approved the building application without considering the wastewater disposal system; whether the Department of Health should improve its approvals process to assist members of the public to ascertain limitations, if any, of wastewater disposal systems; and whether the distributor of the Aqua Nova was under an obligation to bring to the attention of potential clients that the system had been approved subject to restrictions.
The application was dismissed and the decision of the respondent was affirmed.
The Tribunal's reasons were delivered orally; they have been taken from the transcript and edited in minor respects.
Category: B
Representation:
Counsel:
Applicant: N/A
Respondent: Mr T Beckett
Solicitors:
Applicant: N/A
Respondent: McLeods
Case(s) referred to in decision(s):
Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196
REASONS FOR DECISION OF THE TRIBUNAL:
Issue
The issue in this dispute is whether the Tribunal as decision‑maker should approve the application of Mr Bryan Olsen (applicant) to install an Aqua Nova 2000 Aerobic Treatment Model 80100 (Aqua Nova) at No 20 Frayne Place, Wandi (property).
The City of Kwinana (respondent) refused the original application. This review of a decision is brought pursuant to s 61(5)(a) of the Waste Avoidance and Resource Recovery Act 2007 (WA).
The hearing is de novo and the Tribunal is placed in the position of the original decision‑maker. The Tribunal may take into account all the information that was before the original decision‑maker, as well as any additional information, to reach the correct and preferable decision.
Background
The applicant is seeking a review of a decision by the respondent to refuse approval to install the Aqua Nova for purposes of disposal of wastewater at the residence of the applicant. The respondent says the Aqua Nova is not compliant with its policies, since the Aqua Nova is not approved as a phosphorous removal system and the use of it would cause an unacceptable level of nutrients disposing into the soil. The applicant says that:
•he sought approval and received a building licence for renovations at the property;
•he had invested a substantial sum into the upgrade from the existing septic tank system to the Aqua Nova;
•there was inadequate information to forewarn him of the requirements of a nutrient retention system;
•the Department of Health (WA) had approved the Aqua Nova for use in Western Australia; and
•he had already installed the Aqua Nova at a substantial cost.
The respondent says, firstly, that the Department of Health (WA) specifically qualified its approval of the Aqua Nova by informing Everhard, the manufacturer/distributor, that the Aqua Nova is not an approved phosphorous removal system; secondly, the respondent cannot approve the installation of the Aqua Nova, since the Aqua Nova does not comply with the requirement that it should be nutrient retentive; and, as a result of the environmentally sensitive area where the property is located, the Aqua Nova does not comply with the policies of the respondent.
Evidence
The Tribunal received written submissions from both parties. In addition to written submissions, witness statements were received from Mr Tanner, Mr Theobold and Mr McKenzie. Each of these persons also gave oral evidence. The applicant gave oral evidence which also contained submissions.
Contentions of the parties
In essence, the contentions of the parties can be summarised as follows:
The respondent says that although the Aqua Nova is approved for general use in Western Australia, each local government can, on the basis of the specific conditions within that jurisdiction, impose additional standards for wastewater disposal systems. In this case, the respondent had approved in 1996 the Policy for Nutrient Retentive Effluent Disposal Systems (NREDS Policy) to regulate wastewater disposal systems within its jurisdiction, to ensure that only nutrient retentive effluent disposal systems are installed at properties that are not linked to the general water and waste disposal system, the reason being that the Peel‑Harvey Catchment Area is environmentally sensitive; is characterised by soils with low capability for effluent disposal; and that nutrients could cumulatively cause environmental and water degradation to a wide catchment area. The policy of the respondent is therefore that all new developments in rural areas, be it for purposes of a residential dwelling or replacement or upgrade of an existing sewerage or septic system, must entail a nutrient retentive effluent disposal system that complies with the aerobic treatment units as approved pursuant to s 344A(2) of the Health Act 1911 (WA) (Health Act). In this case, the Aqua Nova has been approved for general use in Western Australia, but when it comes to specific localities, the Aqua Nova is not approved as a nutrient retentive effluent disposal system, since Everhard was informed that the Aqua Nova did not meet requirements as an approved phosphorous removal system. The decision of the respondent should therefore be affirmed.
The applicant says that since the Aqua Nova had been approved for use in Western Australia, there was no way for him to ascertain any limitations under which the system operated or the qualifications that accompanied the approval of the Aqua Nova. The applicant sought to upgrade the existing septic system at the property to a far more advanced and environmentally friendly system than is currently in place. The applicant submitted an Application to Contract or Install an Apparatus for the Treatment of Sewerage dated 13 November 2014 (Application) as well as an application for a building permit. When he received the approval of the building permit, he went ahead with the renovations and the installation of the Aqua Nova. It was only when final inspection took place that he was told that the Aqua Nova did not comply with the policy of the respondent. The applicant challenges the decision of the respondent for several reasons; namely, the Aqua Nova has been approved for use in Western Australia; the Aqua Nova is superior to the existing septic system; the policy of the respondent is not applicable to special rural areas; the property is not situated on the Jandakot Water Mound; the wetlands within the vicinity of the property are outside the area of risk (more than 100 metres); the respondent, through its conduct, created the impression that the Aqua Nova had been approved; and the Aqua Nova can be tested on‑site to ensure that it complies with the requirements for nutrient retention. The application should therefore be successful and approval for the installation of the Aqua Nova should be granted.
Findings of fact
The Tribunal will first address some questions of fact and then give its decision, and reasons for decision, in regard to the main issue.
The Tribunal finds as follows in regard to facts that were in dispute:
1)The renovation sought is properly classified as a 'development' for purposes of the NREDS Policy. The renovation is substantial, with a cost of expanding the existing residence of around $350,000; it has enlarged the existing dwelling by around 50%; and it entails two additional bathrooms, a new location for the kitchen, a new location for the laundry and a dining area. Associated to these renovations are also substantial works to the existing plumbing system. The Tribunal is satisfied that the nature and scale of the development bring it within the definition of a 'development' pursuant to the policies of the respondent.
2)The Application was not approved by the respondent. It is not clear to the Tribunal whether the application had indeed been submitted to the respondent or whether it had been submitted to the respondent but was never approved, but, ultimately, there is no evidence that the Application had been approved. The applicant may have assumed the Application had been approved because he was relying on professional assistance and a building licence had been issued, but the fact is that the Application, and therefore the use of the Aqua Nova, had not been approved prior to the installation of the Aqua Nova.
3)The building licence application dated 5 January 2015 had been approved by the respondent on 8 January 2015 but the approval of the building licence did not obviate the requirement to obtain approval for the installation of the Aqua Nova. This proceeding is aimed to establish whether the Application should be approved.
4)The property falls within the Peel‑Harvey Coastal Plain Catchment pursuant to the Western Australian Planning Commission's Statement of Planning Policy No 2.1.
5)The property is located within the Jandakot Water Mound as per the evidence of Mr Tanner and Mr McKenzie.
6)The property is zoned as Special Rural.
7)The property is located within the Public Drinking Water Source Area pursuant to the Jandakot Underground Water Pollution Control Area Schedule 1.
8)The property is located within the area designated as an area that requires nutrient retentive effluent disposal systems pursuant to the NREDS Policy of the respondent.
9)The soil of the property and surrounds is classified as Bassendean Sands Soil, which, according to the evidence of Mr McKenzie and Mr Tanner, fits the description of 'soils classified low or very low land capability for effluent disposal'. In essence, this means that the soil has low nutrient retaining capacity and that, as a result, nutrients discharged from the household can find their way into the groundwater.
10)The Department of Health (WA) has approved the Aqua Nova for use within Western Australia as an aerobic treatment unit, albeit that the Department informed Everhard by way of a letter dated 4 May 2010 that the Aqua Nova is not approved as a phosphorous removal system. It appears from the letter that the Aqua Nova was not assessed for its phosphorous removal capabilities, since Everhard did not include nitrogen and phosphorous reduction in the assessment report submitted to the Department of Health (WA).
11)Everhard has not provided to the Department of Health (WA) or to the respondent adequate evidence of the Aqua Nova performing as a nutrient retentive effluent system in the Eastern States, and the letter of 8 December 2015 of Everhard is not evidence of field testing results. The letter merely foreshadows that testing results may be forthcoming. No relevant testing results have yet been provided to the Department of Health (WA).
12)In summary, the property is situated in an environmentally sensitive location; it is in close vicinity to two wetlands; it forms part of the catchment of the Peel Water Catchment Area; it is situated within the Jandakot Water Mound; and the soil of the property is low or very low in capability for effluent disposal.
Consideration of submissions
In order to assess the respective submissions, I will first give an overview of the applicable regulatory framework and then consider the submissions.
The respondent adopted the NREDS Policy on 18 December 1996. The essence of the NREDS Policy is that nutrient retentive effluent disposal systems have to be used in properties in the Peel‑Harvey Catchment Area that are not serviced by the general public sewerage systems. The NREDS Policy was adopted pursuant to s 107(2)(a) of the Health Act, which determines that a person who installs or contracts an apparatus for the treatment of sewage commits an offence unless the construction or installation had been approved by the Executive Director of Public Health or the relevant local authority. The basis of the NREDS Policy is to ensure that aerobic treatment systems are capable of retaining nutrients to prevent or mitigate the process of aquatic eutrophication of local and regional water bodies. Refer, in this regard, to the decision tendered to the Tribunal during the hearing in the matter of Wilkinson, Lot 341 Banksia Road, Wellard, 12 February 2001 in which it was found that aquatic eutrophication can have detrimental impacts on public health.
Regulation 4(1) of the Health (Treatment of Sewerage and Disposal Effluent and Liquid Waste) Regulations 1974 (WA) (Regulations), enacted pursuant to the Health Act, provides that an apparatus is to be approved by a local government if it is intended to serve a single dwelling. This regulation does not distinguish between Urban, Rural or Special Rural. It refers to any single dwelling. I am satisfied that this property, which is zoned Special Rural, is not excluded from the NREDS Policy as is proposed by the applicant.
Regulation 7(1) of the Regulations, enacted pursuant to the Health Act, goes on to determine that all materials, fixtures and fittings to be used in the construction of an apparatus must be approved by the Executive Director or approved for the purposes of the Water Services Act 2012 (WA). Although the Aqua Nova was approved on 4 May 2010, it was specifically not approved as a phosphorus removal system. In fact, Everhard did not submit to the Department of Health (WA) that the Aqua Nova could act as a phosphorous removal system. The conditions the subject of the approval were set out in Schedule 1 of the approval dated 4 May 2010. It seems from the evidence as if Everhard did not inform the applicant about this condition/limitation, or the applicant did not make enquiries about the phosphorous removing capacity of the Aqua Nova. The fact is that the applicant installed a system which, for purposes of phosphorous removal or nutrient retentive capacity, did not have approval of the Executive Director. The Tribunal accepts the evidence and explanation of Mr Theobold in this regard.
The City of Kwinana Town Planning Scheme No 2 (Scheme) describes the area where the property is located as a Special Rural zone. Accordingly, in such a zone 'some lots may require an alternative nutrient effluent disposal system'. Although the development condition determines that a conventional system may not be within 100 metres from a wetland and a nutrient retentive effluent disposal system may not be within 50 metres of a wetland, the Tribunal accepts the evidence of Mr McKenzie and Mr Tanner that the property is in close proximity to two wetlands (albeit outside the 50 metre range), but that the nature of the soil and the sensitive water catchment environment within which the property is located combine to justify a cautionary approach whereby a nutrient retentive system is required for purposes of wastewater disposal. It is within the powers of the respondent to enact a policy, and make decisions in accordance to the policy, to enhance the integrity of the groundwater of the area so as to prevent the discharge of excessive nutrient wastage within the drainage system.
The Western Australian Planning Commission's Statement of Planning Policy No 2.1 for the Peel‑Harvey Coastal Plain Catchment describes the risks that the increased disposal of nutrients bears for the catchment. It is therefore envisaged that 'nutrient discharging industries' should be 'tightly' regulated within the catchment. Although the applicant contended that clause 5.1 excludes special rural areas such as the property from the policy, the evidence and proper reading of clause 5.1 is that the opposite is the case. Urban areas are connected to sewage systems but it is, in fact, areas like the property that are sought to be regulated to ensure that nutrient disposal is properly managed.
Although the applicant did not engage the question of the legal status of the NREDS Policy, the Tribunal must ask itself the question whether the respondent is bound to its NREDS Policy or whether there is discretion to deviate from it. It is accepted that a policy is just what it says ‑ a policy, and not a law or a regulation. While a policy may, for good sense and proper government, justify adherence to a policy, it is not to be treated as a statute. Recently, the Supreme Court of Western Australia has once again reminded decision‑makers in the planning area that they will fall into error if 'in substance [the decision‑maker has] regarded itself as bound by [a policy] and inflexibly applied [that policy]': Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 (per Simmonds J). In this matter, I am satisfied that the consistent application of the NREDS Policy is in the public interest; that the cumulative effect of non‑adherence could be severely detrimental to public health; that the NREDS Policy derives from a statutory framework that is intended to promote, safeguard and protect the groundwater of the Peel region; and that the requirement for aerobatic treatment units to be nutrient retentive is reasonable, proper and in the interest of public health.
In regard to the possible modification of the Aqua Nova while in situ, the Tribunal notes that a condition of approval (see letter dated 4 May 2010, Schedule 2 condition 1.2) was that no alteration of the design or specification shall occur without the prior approval of the Executive Director. The Tribunal accepts the evidence of Mr Theobold that no application has been received from the manufacturer for alterations of the design or specification of the Aqua Nova.
As far as possible testing of the Aqua Nova in situ is concerned, the Tribunal accepts the evidence of Mr Theobold that such testing has to take place under scientifically approved circumstances and in accordance with an approved research methodology; that neither the Department of Health (WA) nor the respondent is an approved testing agency; that no proposal has been received by the manufacturer to test the system on site; that conditional approval cannot be given pending the outcome of on‑site testing; and that the risk to the public is too high by allowing experimental testing in an environmentally sensitive area.
In conclusion, I am satisfied that the decision made by the respondent was grounded by a proper statutory framework; that the NREDS Policy which guides its decision‑making should be adhered to; and that the Aqua Nova system, which is not approved for phosphorous removal, should not be approved.
The application for review should therefore be dismissed and the decision should be affirmed.
This decision would no doubt be very disappointing to Mr Olsen. Several questions remain, but those are not for the Tribunal to resolve, namely:
1)Was an application to install the Aqua Nova submitted to the respondent?
2)If an application had been submitted to the respondent, why was it not processed?
3)Why does the internal system of the respondent allow a building licence to be issued without the wastewater disposal system being a factor to consider?
4)How is a member of the public made aware by the respondent that approval of a building permit does not include approval of the proposed wastewater disposal system?
5)Was Everhard under an obligation to disclose to clients the fact that the Aqua Nova had not been approved in Western Australia as a phosphorous removal system?
6)Is the level of information available to members of the public adequate so as to enable them to ascertain which aerobic treatment units are acceptable to which local areas?
Orders
The Tribunal makes the following orders:
1.The application is dismissed.
2.The decision of the City of Kwinana to refuse approval to Mr Olsen to install the Aqua Nova 2000 Aerobic Treatment Model 80100 at 20 Frayne Place, Wandi is affirmed.
I certify that this and the preceding [24] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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