Ballina Shire Council v Jacobson & McMillan [2006] NSWLEC 217

Land and Environment Court of New South Wales

CITATION : Ballina Shire Council v Jacobson & McMillan [2006] NSWLEC 217

APPLICANT Ballina Shire Council PARTIES : RESPONDENTS Clayton Jacobson & Lee Anne McMillan

FILE NUMBER(S) : 40773 of 2005

CORAM: Jagot J

KEY ISSUES: Civil Enforcement :- Sewerage works and operation of a system of sewerage management - diversion of wastewater - requirement for approvals under s 68 and s 68A of the Local Government Act 1993 - making of final orders to protect public health and the environment

LEGISLATION CITED: Local Government Act 1993 s 68, s 68A, s 124, s 676(1)

DATES OF HEARING: 17/02/2006, 20/02/2006, 21/02/2006, 22/02/2006

DATE OF JUDGMENT: 05/30/2006

APPLICANT M Stevens LEGAL REPRESENTATIVES: SOLICITORS W J Grace & Co RESPONDENTS C Jacobson & L McMillan (in person)

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Jagot J

30 May 2006

40773 of 2005

BALLINA SHIRE COUNCIL Applicant

CLAYTON JACOBSON & LEE ANNE McMILLAN Respondents

JUDGMENT Jagot J: 1. On 28 March 2006 I delivered my reasons for judgment in this matter. I gave the parties an opportunity to be heard on the form of the draft Orders which I annexed to my reasons. 2. The Council filed and served a submission to the effect that proposed order 2(a) ought to include the following specification: The area to be treated comprises approximately 84 square metres and extends some 2 metres north off the north east corner of the southern building, following the building line, and then to a point 6 metres west into the road reservation then 14 metres south and running parallel to the southern building and then running 6 metres to the east to the wall of the southern building, such an area being marked generally in accordance with the red hatching on the plan annexed hereto and marked "A". 3. The Council also submitted that, in proposed order 12, the word "southern" in the first line should be replaced with the word "northern". 4. At a telephone mention on 9 May 2006, I provided the respondents with an extension of time (until 12 May 2006) to make a submission on the form of the draft orders. The respondents did not do so. 5. I accept the Council's submissions. It follows that, for the reasons set out in my principal reasons, orders should be made in accordance with annexure "A". 6. The terms of these orders depart, in some respects, from the Council's order issued under s 124 of the Local Government Act 1993 and the class 4 application. Section 676(1) of the Local Government Act 1993 provides that if the Court is satisfied that a breach of the Act has been committed or will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. Having regard to the findings in my principal reasons, I consider that: - (1) Order 1(c) is necessary so that the injunction restraining use of the premises does not apply if all wastewater from the buildings on the premises is managed in accordance with approvals granted under s 68 and s 68A of the Local Government Act 1993. This operates in the alternative to orders 1(b) and 1(c). (2) Given the proximity of the premises to Emigrant Creek and location in a high water table area, the wastewater tanks ought to be fitted with an alarm system, in addition to the respondents providing to the Council a copy of the pump out contract for those tanks (rather than in the alternative to the respondents so doing). (3) The wastewater tank system for the northern building ought to comprise (at least) a tank and holding well of not less than 2050 litres capacity each (rather than a single tank). 7. Accordingly, I make orders in accordance with annexure "A" hereto.