Tamworth Regional Council v Pallier

[2007] NSWLEC 750

Land and Environment Court

of New South Wales

CITATION:

Tamworth Regional Council v Pallier [2007] NSWLEC 750

PARTIES:

APPLICANT
Tamworth Regonal Council
RESPONDENT
Jamie Kavanagh Pallier

FILE NUMBER(S):

40798 of 2007

CORAM:

Sheahan J

KEY ISSUES:

Injunctions and Declarations :- Council order; septic system; costs

LEGISLATION CITED:

Local Government Act 1993

DATES OF HEARING:

16 November 2007

EX TEMPORE JUDGMENT DATE:

16 November 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Singh, Solicitor of
Everingham Solomons

RESPONDENT
No appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

16 November 2007

40798 of 2007 Tamworth Regional Council v Pallier

EXTEMPORE JUDGMENT

1 His Honour: These are Class 4 proceedings seeking serious orders against Mr Pallier in respect of a septic system on a property at RA28 Stephens Road Hallsville, being Lot 13 in Deposited Plan 246721.

2 Mr Pallier was personally served with copies of the application indicating the orders to be sought from the court, and subsequently with Points of Claim and the affidavits upon which Council has relied at the hearing today, but, for whatever reason, he has chosen not to appear.

3 The Council asks the court to make the Orders in Mr Pallier’s absence and has led compelling evidence that they should be made. That evidence comes primarily from relevant Council officers Elliott Thomas Henry and Mervyn John Prendergast, and satisfies the court that:

1. Tamworth Regional Council is the appropriate applicant, as successor of the Parry Shire Council, within which Council area the subject land is located;

2. the Council’s records disclose that Jamie Kavanagh Pallier is the registered owner and/or ratepayer of the subject land, and, as such, is the person to whom the Council and the court must look for the rectification of any municipal problem on the land;

3. the local Council has been concerned about apparently inadequate treatment of domestic septic waste on the subject land since, at least, a Parry Council inspection on 29 April 2003.

4. Mr Pallier has been on notice of Council concerns since at least Parry Council’s notice of 5 May 2003 requiring installation of an appropriate system, and he and family members have had various discussions over time with relevant Council officers since that notice.

5. Parry Council issued an Order on 11 December 2003 under ss 124.22 and 378(2) of the Local Government Act 1993.

6. repeated inspections by Council officers since that time have disclosed no remedial works having been undertaken, despite some dealings between the parties in mid 2004 and early-mid 2006, and preliminary discussions during 2006 with a plumber.

7. an infringement notice was posted to Mr Pallier on 29 May 2006 and apparently paid by him; and

8. the solicitors for Council wrote to Mr Pallier on 17 July 2006 indicating these proceedings would be commenced and that Council would look to him for the cost of them.

4 I am satisfied that Mr Henry has the appropriate qualifications and experience to explain to the court the nature of the problem alleged by the Council, and Mr Pallier’s lack of action on it, and Mr Henry has produced and explained to the court three sets of photographs, taken during site inspections in May 2006, on 30 April 2007, and yesterday.

5 Mr Prendergast was present on 30 April 2007, and deposes to detecting odours of sewage some 30-35 metres from the septic tank and the presence of sludge near the tank, and a trickle of water running from the vent pipe shown in the photographs on to nearby grazing lands carrying horses.

6 These officers opine that there is probably a blockage in the system and that the tank will soon overflow.

7 There is no evidence of remedial work having been undertaken, or even investigated by or on behalf of the landholder, and I am satisfied that the current state of affairs constitutes a risk to human and stock health, and a serious threat of environmental harm.

8 Accordingly, the declarations and orders sought in the Council’s class 4 application should be made, namely declarations 1, 2 & 3, and orders 4, 5, 6 & 8.

Orders

9 The Court makes the following declarations:

1. A declaration that the Respondent is the owner and the occupier of the land being all the land comprised in Lot 13 DP 246721 and known as RA28 Stephens Road Hallsville ("the land”) in the state of New South Wales.

2. A declaration that waste is present or generated on the land and is not being dealt with adequately.

3. A declaration that the Respondent is in breach of the Local Government Act 1993.

10 The Court makes the following orders:

1. An Order that the Respondent install an approved effluent disposal/recycling system in accordance with Australian Standard 1547:2000 within twenty eight (28) days from the date of these Orders.

2. An Order that the Applicant be permitted by itself, its servants or agents, to enter upon the land and carry out such works, or cause or permit the carrying out of such works as are necessary to comply with Order 1 above if after a period of twenty eight (28) days from the date of these Orders, the Respondent has failed to comply with the said Orders.

3. The Respondent to pay the Applicant's reasonable costs of carrying out the works referred to in Order 2, such costs to be recoverable by the Applicant against the Respondent as a debt due to the Applicant.

4. The Respondent to pay the Applicant's costs of these proceedings.

5. The Exhibits to be retained.