Owners Strata Plan 10897 v Woollahra Municipal Council

Case [2004] NSWLEC 5

Land and Environment Court


of New South Wales


CITATION: Owners Strata Plan 10897 v Woollahra Municipal Council [2004] NSWLEC 5
PARTIES:

APPLICANT
Owners Strata Plan 10897

RESPONDENT
Woollahra Municipal Council
FILE NUMBER(S): 11202 of 2003
CORAM: Hussey C
KEY ISSUES: Waste Disposal :- Issue of Direction for preventative action - reasonableness
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Protection of Environmental Operations Act 1997
CASES CITED:
DATES OF HEARING: 19 January 2004
EX TEMPORE
JUDGMENT DATE :		 01/19/2004
LEGAL REPRESENTATIVES:


APPLICANT
Mr J Davies (Representative Strata Body)

RESPONDENT
Mr M Connell , solicitor
SOLICITORS
Michell Sillar



JUDGMENT:

    IN THE LAND AND
    ENVIRONMENT COURT
    OF NEW SOUTH WALES

    11202 of 2003

    Hussey C

    19 January 2004

    Owners Strata Plan 10897
    Applicant
    v

    Woollahra Municipal Council
    Respondent

    Judgment
        1 . This appeal is against council’s issue of a s 96(1) Direction to take preventative action to rectify unauthorised effluet discharge from a private sewer line discharging into Cooper Street, Paddington.

        2 . I understand from the various statements that the discharge problem was evident for some time, with a number of complaints regarding odour being made by various residents.

        3 . Mr Lee from council checked the origin of the discharge by placing dye in the sewerage system that confirmed the source of the pollution was the flats at No. 190 Glenmore Road. This resulted in the issue of the s 96 Direction to take preventative action. As the pollution source was traced to the subject property, I consider it was reasonable on the basis of the known information to issue the Direction to rectify the pollution, in order to protect the public interest.

        4 . The appeal process allows for an appeal top be lodged within 21 days. However, in this case the work has been completed in the interim period by the Body Corporate at some considerable cost. On an appeal the Court has the discretion to decide whether it is reasonable that the Direction be issued, or further matters such as the basis and time on which the work is to be completed. That option has not been followed in this case, because the work has been completed.

        5 . In undertaking the rectification works then, it has been found by the applicant’s licensed plumber that there is a failure of the underlying stormwater pipe which is likely to have contributed to the damage to the sewer because of a reduction in bearing capacity. That being the case, it appears there could be a case for separate action, regarding appropriation of costs.

        6 . Furthermore, there is an issue to ensure that the stormwater line is adequately cleaned and repaired so that it will not cause future damage to the private sewer line. However in the ultimate, I consider that there was at the time, reasonable evidence to justify the issue of the Direction to rectify the sewer discharge/pollution.

        7 . Accordingly the Court order is that the appeal is dismissed.

                            ___________
                            R Hussey
                            Commissioner of the Court
                            rjs
Details
AGLC
Owners Strata Plan 10897 v Woollahra Municipal Council [2004] NSWLEC 5
Case
[2004] NSWLEC 5
Decision Date

CaseChat Overview and Summary

The case of Owners Strata Plan 10897 v Woollahra Municipal Council was heard in the Land and Environment Court of New South Wales. The applicant, Owners Strata Plan 10897, appealed against the respondent Woollahra Municipal Council's issuance of a s 96(1) Direction under the Environmental Planning and Assessment Act 1979, requiring preventative action to rectify unauthorised effluent discharge from a private sewer line into Cooper Street, Paddington. The issue arose due to complaints about odour and pollution originating from the flats at 190 Glenmore Road.

The central legal issue was whether the Council's issuance of the s 96 Direction was reasonable. The court examined the evidence of the pollution source traced to the applicant's property, the completion of rectification works by the Body Corporate, and the discovery of a failure in the underlying stormwater pipe, which might have contributed to the sewer damage. The court also considered the discretion available to decide whether the Direction should be upheld or if further matters, such as the basis and timing of the work, should be addressed. However, the court noted that the work had been completed, limiting the scope of its decision.

In its reasoning, the court acknowledged the reasonable basis for the Council's action in issuing the Direction to protect the public interest, given the known information at the time. The court determined that the appeal should be dismissed, as the Direction was justified based on the available evidence. Additionally, the court noted that separate action could be pursued regarding the appropriation of costs due to the discovered failure in the stormwater pipe. The court also highlighted the importance of ensuring that the stormwater line is adequately cleaned and repaired to prevent future damage to the private sewer line.

The court's final order was to dismiss the appeal, finding that the Council's issuance of the s 96 Direction was reasonable. The court did not entertain further matters such as the basis and timing of the work, as the rectification works had already been completed by the Body Corporate.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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