Reported Decision : (2006) 146 LGERA 156 Land and Environment Court of New South Wales CITATION : Ballina Shire Council v Jacobson & McMillan [2006] NSWLEC 135 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 Land and Environment Court Act 1979 s 20(1)(d) Local Government Act 1993 s67, s 68, s 68A, s 89, s 124, s 180(1), s 192, s 193, s 672, s 673, s 674(1), s 676, s 710, s 748(1) Local Government (Amendment) Miscellaneous Act 2002 LEGISLATION CITED: Local Government (Approvals) Amendment (Plumbing and Drainage Code of Practice) Regulation 2004 Local Government (Approvals) Regulation 1999 Pt 3, Sch 2, cl 8, cl 13, cl 15, cl 16, cl 20, cl 25, cl 28, cl 31, cl 38, cl 42, cl, 43, cl 44, cl 45, cl 46, cl 47, Pt 4 Local Government (General) Regulation 2005 Local Government (Water Services) Regulation 1999 cl 20 Protection of the Environment Operations Act 1997 Auburn Municipal Council v Szabo (1988) 67 LGERA 423; Barak v WTH Pty Ltd t/as Avis Australia [2002] NSWSC 649; Commonwealth Development Bank of Australia Pty Ltd Another v Cassegrain [2002] NSWSC 980; Hepples v Federal Commissioner of Taxation (1990) 94 ALR 81; Hubertus Schuetzenverein Liverpool Rifle Club Limited v Commonwealth of Australia (1994) 51 FCR 213; 85 LGRA 37; Jermen v Shell Co Australia Limited [2003] NSWSC 1106; Langbourne v State Rail Authority [2003] NSWSC 537; CASES CITED: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Parramatta City Council v Shell Co of Australia Limited [1972] 2 NSWLR 632; Portal Software v Bodsworth [2005] NSWSC 1228; Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321; Sydney Serviced Apartments v North Sydney Municipal Council [No 2] (1993) 78 LGERA 404; United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339; Woolworths Limited v Campbell's Cash and Carry Pty Ltd (1996) 92 LGRA 244 DATES OF HEARING: 17/02/2006, 20/02/2006, 21/02/2006, 22/02/2006 DATE OF JUDGMENT: 03/29/2006 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 29 March 2006 40773 of 2005 BALLINA SHIRE COUNCIL Applicant CLAYTON JACOBSON & LEE ANNE McMILLAN Respondents JUDGMENT Jagot J: Introduction 1 This is a class 4 application in which the Ballina Shire Council ("the Council") as applicant seeks orders against the respondents: - (i) restraining the discharge of "domestic wastewater" from two structures on premises owned by the respondents and known as No's 14 – 22 Smith Drive, West Ballina, being lot 1 in DP 605260 (the "premises"), and (ii) requiring the carrying out of certain works to plumbing and drainage facilities servicing those structures. 2 The principal issues for determination are whether the respondents installed and used facilities and made arrangements for wastewater management on the premises absent approval and in breach of the Local Government Act 1993 (in whole or part) and, if so, whether orders should be made against the respondents to restrain and rectify any such breaches. An issue also arises with respect to enforcement of an order served by the Council on the respondents under s 124 of the Local Government Act 1993, relating to management of wastewater on the premises. 3 The proceedings are related to proceedings 21462 of 2004. The class 2 proceedings involved an appeal (under s 180) against the order given by the Council under s 124 of the Local Government Act 1993. The order was given on 21 October 2004 under item 22 of the Table to s 124 (the "s 124 order"). That section provides as follows: A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table. … Column 1 Column 2 Column 3 To do what? In what circumstances? To whom? 22 To store, treat, process, collect, remove, dispose of or destroy waste which is on land or premises in the manner specified in the order, provided that it is not inconsistent with regulations made under the Protection of the Environment Operations Act 1997 Waste is present or generated on the land or premises and is not being dealt with satisfactorily, and is not regulated or controlled by, or subject to, a licence or notice granted or issued under the Protection of the Environment Operations Act 1997 Owner or occupier of land or premises, owner of or person responsible for the waste or for any receptacle or container in which the waste is contained 4 The class 2 proceedings were discontinued by consent on 8 April 2005. On 30 June 2005, the respondents filed a notice of motion seeking to set aside the consent orders in the class 2 proceedings. The notice of motion was listed for hearing with this class 4 application. I determined that the notice of motion in the class 2 proceedings ought to be heard and determined prior to the hearing of the class 4 proceedings. The hearing of the class 2 notice of motion took place on 15 and 16 February 2006. I dismissed the notice of motion on 17 February 2006. The class 4 proceedings were then heard. 5 Certain interlocutory orders made by Bignold J on 25 August 2005, in part, set the factual context within which these proceedings must be determined. Bignold J made interlocutory orders in these proceedings as follows: 1. On an interlocutory basis and until further order of the Court the Respondents or any one or more of them at their own cost and expense carry out or cause to be carried out at the expiry of 7 days following their return to the jurisdiction (unless within that time the Respondents move to have the orders set aside) the following works at premises situate at Lot 1 DP 605260 No. 14 Smith Drive, West Ballina, NSW: (i) Redirect all sanitary drainage not already discharging to existing effluent holding tanks situated on the premises into the said holding tanks; (ii) Pump out all existing holding tanks situated on the premises on a daily basis, including weekends; (iii) Submit to Ballina Shire Council's Environmental and Public Health Unit by fax to facsimile no. (02) 6681-1375 copies of receipts for each daily pump out no later than 2.00pm every day. 2. On an interlocutory basis and until further order of the Court that if the above works are not complied with fully at any time to the satisfaction of the Applicant, the Respondents and each of them be restrained from using or causing or permitting to be used the land and buildings at Lot 1 DP 605260 for any purpose. 3. Costs of the interlocutory proceedings be reserved. 6 It is common ground that the respondents carried out certain works after the interlocutory orders. It is also common ground that the use of the premises ceased at some time after the making of the orders. The respondents ceased the use, they say, because interlocutory orders 1(ii) and (iii) imposed too heavy a burden compared to the benefits of using the premises. 7 The Council now seeks final orders with respect to the plumbing and drainage facilities and arrangements for disposal of wastewater on the premises. The respondents contend that there is no basis for making final orders and, in consequence, the interlocutory orders ought to be dissolved. The statutory provisions 8 Many aspects of the dispute between the Council and the respondents arise from their competing understandings of the operation of the Local Government Act 1993 and the Regulations made under that Act (the Regulations have been repealed and re-made from time to time, whereas the Act has remained in force but has been amended from time to time). It is necessary to identify the applicable legislative context so that the significance of the factual findings that I make may be understood. The starting point for this consideration is the year 2000 as the respondents acquired the premises in or about that year. In the paragraphs below, the provisions operated at all relevant times unless otherwise stated. The Local Government Act 1993 9 Section 672 of the Local Government Act 1993 provides that: In this Part: (a) a breach of this Act means: (i) a contravention of or failure to comply with this Act, (ii) a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act, and (b) this Act includes: (i) an approval under Part 1 of Chapter 7, and (ii) an order under Part 2 of Chapter 7, and (iii) the regulations. 10 Section 673(1) provides that: The Minister, the Director-General or a council may bring proceedings in the Land and Environment Court or such other court as may be specified in this Act for the purpose of the proceedings for an order to remedy or restrain a breach of this Act. 11 Section 674(1) provides that: Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act. 12 Section 676 provides that: (1) If the Land and Environment Court is satisfied that a breach of this Act has been committed or that a breach of this Act 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. (2) If a breach of this Act would not have been committed but for the failure to obtain an approval under Part 1 of Chapter 7, the Court on application being made by the defendant, may: (a) adjourn the proceedings to enable an application to be made under Part 1 of Chapter 7 to obtain that approval, and (b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned. (3) The functions of the Court under this section are in addition to and not in derogation of any other functions of the Court. 13 Prior to 1 August 2002 (the date on which the Local Government (Amendment) Miscellaneous Act 2002 came into force) s 68 provided that: (1) A person may carry out an activity specified in the following Table only with the prior approval of the council, except in so far as this Act, the regulations or a local policy adopted under Part 3 allows the activity to be carried out without that approval. … Table Approvals Part B Water supply, sewerage and stormwater drainage work 1 Carry out water supply work 2 Draw water from a council water supply or a standpipe or sell water so drawn 3 Install, alter, disconnect or remove a meter connected to a service pipe 4 Carry out sewerage work 5 Carry out stormwater drainage work 6 Connect a private drain or sewer with a public drain or sewer under the control of a council or with a drain or sewer which connects with such a public drain or sewer Part C Management of waste 1 For fee or reward, transport waste over or under a public place 2 Place waste in a public place 3 Place a waste storage container in a public place 4 Dispose of waste into a sewer of the council 5 Install, construct or alter a waste treatment device or a human waste storage facility or a drain connected to any such device or facility Part F Other activities … 10 Carry out an activity prescribed by the regulations or an activity of a class or description prescribed by the regulations 14 The Dictionary to the Local Government Act 1993 contains the following definitions: approval means an approval that is in force under this Act. drain means a drain for the carrying off of waters other than sewage. human waste means human faeces and urine. human waste storage facility means a device for holding or disposing of human waste, including a cesspit, septic tank, septic closet, water closet, chemical closet, humus closet and combustion closet. sewerage work means the construction, alteration, extension, disconnection, removal, ventilation, flushing or cleansing of any sewerage service pipes or fittings or fixtures communicating or intended to communicate, directly or indirectly, with: (a) a septic tank, an effluent or a sullage disposal system, or (b) any sewer of a council, and includes work of sanitary plumbing and work of house drainage. waste means: (a) effluent, being any matter or thing, whether solid or liquid or a combination of solids and liquids, which is of a kind that may be removed from a human waste storage facility, sullage pit or grease trap, or from any holding tank or other container forming part of or used in connection with a human waste storage facility, sullage pit or grease trap, or (b) trade waste, being any matter or thing, whether solid, gaseous or liquid or a combination of solids, gases and liquids (or any of them), which is of a kind that comprises refuse from any industrial, chemical, trade or business process or operation, including any building or demolition work, or (c) garbage, being all refuse other than trade waste and effluent, and includes any other substance defined as waste for the purposes of the Protection of the Environment Operations Act 1997, and a substance is not precluded from being waste merely because it is capable of being refined or recycled. 15 The Protection of the Environment Operations Act 1997 defines "waste" in the Dictionary to that Act: "waste" (unless specially defined) includes: (a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or (b) any discarded, rejected, unwanted, surplus or abandoned substance, or (c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, reprocessing, recovery or purification by a separate operation from that which produced the substance, or (d) any substance prescribed by the regulations to be waste for the purposes of this Act. A substance is not precluded from being waste for the purposes of this Act merely because it can be reprocessed, re-used or recycled. 16 The Local Government (Amendment) Miscellaneous Act 2002 came into force on 1 August 2002. That Act inserted s 68A into the Local Government Act 1993 as follows: 68A Meaning of "operate a system of sewage management" (1) In this Part, operate a system of sewage management means hold or process, or re-use or discharge, sewage or by-products of sewage (whether or not the sewage is generated on the premises on which the system of sewage management is operated). (2) Without limiting subsection (1), operate a system of sewage management includes the following: (a) use artificial wetlands, transpiration mounds, trenches, vegetation and other effluent polishing, dispersal or re-use arrangements in related land application areas, (b) hold or process sewage that is to be subsequently discharged into a public sewer. (3) However, operate a system of sewage management does not include any of the following: (a) any action relating to the discharge of sewage directly into a public sewer, (b) any action relating to sewage or by-products of sewage after their discharge into a public sewer. (4) In this section: public sewer means a sewer operated by a council or county council, a water supply authority (within the meaning of the Water Management Act 2000), a State owned corporation specified in Schedule 1 or 5 to the State Owned Corporations Act 1989 (or a subsidiary of such a corporation) or any other public or local authority. related land application area , in relation to a sewage management facility, means the area of land (if any) where it is intended that effluent and bio-solid waste from the facility will be re-used, applied or dispersed into the environment. sewage includes any effluent of the kind referred to in paragraph (a) of the definition of waste in the Dictionary to this Act. sewage management facility means: (a) a human waste storage facility, or (b) a waste treatment device intended to process sewage, and includes a drain connected to such a facility or device. 17 The Local Government (Amendment) Miscellaneous Act 2002 also inserted item 6 into Part C of the table to s 68 as follows: 6 Operate a system of sewage management (within the meaning of section 68A) 18 As explained below, this amendment was one of form rather than substance because the operation of a system of sewage management required approval prior to the 2002 amendment by reason of item 10 to Part F of the table to s 68 ("carry out an activity prescribed by the regulations or an activity of a class or description prescribed by the regulations) and cl 45 of the Local Government (Approvals) Regulation 1999 which provided that: The operation of a system of sewage management is a prescribed activity for the purposes of item 10 of Part F of the Table to section 68 of the Act. 19 Clause 45 was repealed by the Local Government (Approvals) Amendment (Plumbing and Drainage Code of Practice) Regulation 2004 published in the New South Wales Government Gazette on 17 December 2004. The clause, however, had been redundant since the insertion of s 68A into the Local Government Act 1993. In other words, the operation of a system of sewage management, at all times, required approval. 20 The Local Government (Amendment) Miscellaneous Act 2002 also amended the defined term "sewerage work" by the deletion of the words "or cleansing" and the insertion of the words "cleansing, maintenance, repair, renewal or clearing". 21 Section 89 of the Local Government Act 1993 provides that: 89 Matters for consideration (1) In determining an application, the council: (a) must not approve the application if the activity or the carrying out of the activity for which approval is sought would not comply with the requirements of any relevant regulation, and (b) must take into consideration any criteria in a local policy adopted under Part 3 by the council which are relevant to the subject-matter of the application, and (c) must take into consideration the principles of ecologically sustainable development. (2) If no requirements are prescribed for the purposes of subsection (1) (a), and no criteria are adopted for the purposes of subsection (1) (b), the council in determining an application: (a) is to take into consideration, in addition to the principles of ecologically sustainable development, all matters relevant to the application, and (b) is to seek to give effect to the applicant's objectives to the extent to which they are compatible with the public interest. (3) Without limiting subsection (2), in considering the public interest the matters the council is to consider include: (a) protection of the environment, and (b) protection of public health, safety and convenience, and (c) any items of cultural and heritage significance which might be affected. 22 The relevant parts of s 124 of the Local Government Act 1993 have been reproduced above. 23 Section 748(1) of the Local Government Act 1993 provides that: The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. The Regulations 24 Until 1 September 2005 (the date on which the Local Government (General) Regulation 2005 came into force), the relevant regulations were the Local Government (Approvals) Regulation 1999 and the Local Government (Water Services) Regulation 1999. All but one clause of the 1999 Regulations (a clause which is not relevant to this matter in any event) has been reproduced in substance in the 2005 Regulation. 25 Clause 20 of the Local Government (Water Services) Regulation 1999 provided that: Water supply work, sewerage work and stormwater drainage work must comply with any applicable standards or requirements set out or referred to in the Act, this Regulation or the Local Government (Approvals) Regulation 1999. 26 The Local Government (Approvals) Regulation 1999 contained detailed provisions supplementing the Local Government Act 1993, under which the Regulations were made. The provisions regulated the carrying out of water, sewer and related plumbing works and facilities. As noted, the substance of these provisions (with updated references to various standards and codes and certain other amendments) is now reflected in the Local Government (General) Regulation 2005. 27 The following terms were defined in the Local Government (Approvals) Regulation 1999: "house drain" means that part of the sewerage service that conveys (or is intended to convey) the discharges from soil pipes and waste pipes on premises. "Manual of Authorization Procedures" means the Manual of Authorisation Procedures for Plumbing and Drainage Products (MP 52 - 1991) published by Standards Australia; "Plumbing and Drainage Code of Practice" means the New South Wales Code of Practice Plumbing and Drainage produced by the Committee on Uniformity of Plumbing and Drainage Regulations in New South Wales, as in force from time to time; "septic tank" means a fixed receptacle of watertight material used in connection with the storage or bacterial treatment of sewage; "sewage of a domestic nature" includes human faecal matter and urine and waste water associated with ordinary kitchen, laundry and ablution activities of a household. It does not include the contents of a pan, septic tank, cesspool or privy. "sewerage service" , in relation to premises: (a) means the pipes, fittings or fixtures used or intended to be used in connection with the premises for the purpose of conveying sewage or permitted discharges from the premises to the council s sewerage system, and (b) if a septic tank is installed on the premises and connects or is intended to connect (directly or indirectly) with the council s sewerage system includes a septic tank (other than a septic tank intended to discharge to a related effluent application area), an effluent tank or a sullage tank. "soil pipe" means any pipe that conveys the discharge from human waste storage facilities, or from operating theatres or morgues, to the house drains. "trade waste" means all liquid waste other than sewage of a domestic nature. "waste pipe" means any pipe that conveys discharges to a house drain from fixtures (other than human waste storage facilities) or operating theatres or morgues. 28 The 2005 Regulation maintains the substance of those definitions, but also adds a definition of "sewage" as follows: "sewage" includes any effluent of the kind referred to in paragraph (a) of the definition of "waste" in the Dictionary to the Act. This definition, however, was not new – it was previously contained in clause 25 of the Local Government (Approvals) Regulation 1999 (see below). 29 Part 3 of the Local Government (Approvals) Regulation 1999 concerned approvals relating to (relevantly) sewerage work. Clause 13 provided that: The council must not approve an application for an approval allowing water supply, sewerage or stormwater drainage work to be carried out unless it is satisfied that the activity as proposed to be carried out will comply with any applicable standards set out or referred to in Schedule 2 and with any other applicable standards or requirements set out or referred to in this Regulation. 30 Schedule 2, para 1, provided that: Water supply work, sewerage work and stormwater drainage work must comply with the Plumbing and Drainage Code of Practice except where otherwise provided in the Act, this Regulation or the Local Government (Water Services) Regulation 1999. 31 Schedule 2, paras 6 and 7, provided that: 6 Requirements as to water closet suites (1) A water closet suite must not be installed unless it complies with subclause (2) or is a type approved under subclause (3). (2) A water closet suite must: (a) have a cistern with a maximum flushing volume of at least 6 litres, and (b) if the suite is to be installed in a class 1 or class 2 building (as defined in the Building Code of Australia ): (i) the cistern must be of the dual flushing kind, and (ii) the suite must satisfy the requirements of the Manual of Authorization Procedures . However, a water closet suite also complies with this subclause if it is to be connected to a soil stack and has a cistern with a flushing volume of at least 4 litres. (3) The Director-General of the Department of Land and Water Conservation may approve in writing a type of water closet suite that: (a) has a different maximum flushing capacity from that referred to in subclause (2) (a), or (b) in the case of a suite that is to be installed in a class 1 or class 2 building, does not satisfy the requirements of subclause (2) (b) (ii). Note: A "soil stack" is a vertical sewer pipe located in a multi-storey building. 7 Materials for use in water supply, sewerage or stormwater drainage work (1) Materials used in carrying out water supply, sewerage or stormwater drainage work referred to in item 1, 4 or 5 of Part B of the Table to section 68 of the Act must be of a kind authorised for the purposes of the work: (a) by the Director-General of the Department of Land and Water Conservation, or (b) under the Manual of Authorization Procedures . (2) If an inconsistency arises under subclause (1), the authorisation of the Director-General of the Department of Land and Water Conservation prevails. 32 Clause 15 prescribed matters for consideration in determining applications for approval for sewerage work, including: (a) the protection and promotion of public health, (b) the protection of the environment, (c) the safety of its employees, (d) the safeguarding of its assets, (e) any other matter that it considers to be relevant in the circumstances. 33 Clause 16 imposed prescribed conditions of an approval for the carrying out of sewerage work by reference to Sch 2 (see above). 34 Clause 20 required the persons carrying out sewerage work to hold a permit under the Plumbing and Drainage Code of Practice. 35 Part 4 of the Local Government (Approvals) Regulation 1999 concerned approvals relating to the management of waste. Clause 25 contained the following definitions: In this Part: " environmentally sensitive area " includes: (a) land or an area listed in the definition of environmentally sensitive area in Part 3 of Schedule 3 to the Environmental Planning and Assessment Regulation 1994 , and (b) any land or area: (i) within 100 metres of a natural waterbody, wetland or coastal dune field, or (ii) with a high watertable, or (iii) with highly permeable soils or acid sulphate, sodic or saline soils, or (iv) within a drinking water catchment, or (v) within the water catchment area of an estuary where the entrance to the sea is intermittently open. " related effluent application area ", in relation to a sewage management facility, means the area of land (if any): (a) where it is intended to dispose of the effluent and any by-products of sewage from the facility, or (b) to which the effluent and by-products are intended to be applied. "sewage" includes any effluent of the kind referred to in paragraph (a) of the definition of "waste" in the dictionary to the Act. " sewage management facility " means: (a) a human waste storage facility, or (b) a waste treatment device intended to process sewage, and includes a drain connected to such a facility or device. 36 Clause 28 prescribed the matters required to be accompany an application to install or construct sewage management facilities. If an application related to an environmentally sensitive area, that area was required to be identified in the application for approval. Clause 31 prescribed the matters to be considered in determining an application to install, construct or alter sewage management facilities. Clause 8 set out performance standards for sewage management facilities. Clauses 42 and 43 provided for accreditation of certain components of sewage management facilities (including septic tanks). 37 Division 7 concerned the operation of a system of sewage management. It contained cl 45 prior to its repeal. Clause 44 contained a definition of "operate a system of sewage management" in the same terms as s 68A. Clause 46 prescribed the matters to be taken into consideration in determining applications for approval to operate a system of sewage management. 38 Division 8 imposed performance standards on the operation of systems of sewage management (which, as noted, required approval by reason of item 10 of Part F of the Table to s 68 and clause 45 of the 1999 Regulation prior to its repeal). The principal contentions of the parties The Council 39 The Council's principal contentions may be summarised as follows: (1) The respondents carried out or caused to be carried out works to both the southern and northern buildings on the premises. The respondents carried out these works in or about 2000 to 2002, involving the following: (a) To the southern building:- (i) removal of the plumbing facilities from the upstairs, installing new facilities including a new shower and shower tub, a toilet, urinal and hand basin, and connection of those facilities to a sub-surface absorption area/pit adjacent to the southern building which is located in part on the road reserve, and (ii) installation of a new shower and wall in the downstairs section; and (b) To the northern building:- (i) installation of a ship's head toilet, connection of that toilet to the water main and to the piping which is connected to an elevated tank, (ii) installation of the elevated tank and associated pipework including the pipework which enables the tank to be emptied by suction, (iii) connection of a sink to the sub-surface absorption area/pit adjacent to the northern building, (iii) installation of a basin and shower on the mezzanine level and connection of those facilities to the sub-surface absorption area/pit. I will refer to these works as the "2002 works". (2) All of the 2002 works fell within the definition of "sewerage works" in the Dictionary to the Local Government Act 1993. The Council relies on sub-para (a) of the definition of that term (to paraphrase, works directly or indirectly connected with a septic tank, an effluent or a sullage disposal system). The Council contends that the definition of "sewerage works", particularly by the inclusion of reference to an effluent or a sullage disposal system, is ample to apply to all works relating to drainage of all waste streams from buildings (and not merely "human waste" as defined). The Macquarie Dictionary, 2nd ed., defines "sullage" as "1. refuse, scum or filth, 2. Bldg trades dirty water, as from bathrooms, laundries, kitchens etc., excluding sewage" and "sullage pit" as "a pit in which waste, esp. sewage, is held". "Effluent" is defined as "1. flowing out or forth. 2. that which flows out or forth; outflow…4. the outflow from sewage during purification." Hence, all discharges are "effluent". (3) Further, item 5 in Part C of the table to s 68 refers to "waste treatment device" as well as human waste storage facility. "Waste treatment device" is not defined. This concept encompasses any device to treat any superfluous matter (see, again, the definition of "waste" in the Macquarie Dictionary). (4) Approval was required for the 2002 works by reason of item 4 in Part B and item 5 in Part C of the table to s 68 of the Local Government Act 1993, but no approval was obtained. (5) The respondents breached the Local Government Act 1993 (s 672) by failing to obtain approval, thereby enlivening the jurisdiction of this Court (s 673 of the Local Government Act 1993 [and see also s 20(1)(d) of the Land and Environment Court Act 1979]). (6) The respondents also used or caused the use of the 2002 works. This use, including the discharge of all wastewater not being human waste, was the operation of a system of sewage management within the meaning of s 68A (or, prior to s 68A coming into force, item 10 of Part F of the Table to s 68 and cl 45 of the Local Government (Approvals) Regulation 1999. As noted, cl 45 was repealed after s 68A came into force because the provisions were to the same effect). "Sewage", by definition, "includes any effluent of the kind referred to in para (a) of the definition of waste". Paragraph (a) of the definition of waste depends on the concepts of "human waste storage facility, sullage pit or grease trap". Although wastewater not comprising human waste cannot be related to a human waste storage facility, the concept "sullage pit" is broader (see above). Also, "grease trap" would apply to any industrial or trade waste. (7) Section 68A (or its predecessor provision - item 10 of Part F of the table to s 68 and cl 45 of the Local Government (Approvals) Regulation 1999) required the respondents to obtain approval to use (that is, to operate) the 2002 works. No approval was obtained. The respondents' failure to obtain the approval was in breach of the Local Government Act 1993 (s 672), thereby enlivening the jurisdiction of this Court (s 673 of the Local Government Act 1993 [and see also s 20(1)(d) of the Land and Environment Court Act 1979]). (8) Various components of the works could not have been approved because they did not comply with the requirements of the Local Government (Approvals) Regulation 1999 (see s 89 and cl 13). In particular, the elevated tank installed near the northern building is not the subject of a certificate of accreditation as required for a septic tank (cll 42 and 43), the hose connecting that tank to the ship's head toilet is not of an authorised kind (Sch 2 para 7) and the ship's head toilet itself does not comply with the Plumbing and Drainage Code of Practice (Sch 2 para 1) and is not of an approved type for such use (Sch 2 para 6). The absorption area for the southern building is in part in the Council's road reserve and could or would not be approved in that location. (9) The works and their use were unsatisfactory overall and would not have been approved having regard to the terms of s 89 of the Local Government Act 1993 and the relevant considerations in cll 15 and 31, and the matters referred to in cll 28, 38 and 47, of the Local Government (Approvals) Regulation 1999. This is particularly so given that the premises are within an "environmentally sensitive area" as defined in cl 25 of the Regulation (being within 100 metres of Emigrant Creek and in an area of high watertable). The unsatisfactory arrangements were disclosed through certain inspections and tests carried out by the Council officers, particularly Mr Gavin Spring. (10) The Council was entitled to serve on the respondents the order under s 124 of the Local Government Act 1993 (item 22 in the Table) because waste was present or generated on the premises and was not being dealt with satisfactorily, and was not regulated or controlled by, or subject to, a licence or notice granted or issued under the Protection of the Environment Operations Act 1997. The Council served such an order on the respondents on 1 October 2004. The respondents discontinued their class 2 appeal against that order on 8 April 2005. (11) The respondents had not carried out the works required to comply with the s 124 order. Failure to comply with all of the requirements of the s 124 order was a breach of the Local Government Act 1993 (s 672(b)(ii)), enlivening the jurisdiction of this Court (s 673 of the Local Government Act 1993 [and see also s 20(1)(d) of the Land and Environment Court Act 1979]). (12) Some works, however, were carried out subsequent to either the s 124 order or the interlocutory orders [which I will refer to as the "2005 works"]. The 2005 works primarily involved redirecting and then disconnecting the systems (capping pipework and the like). The 2005 works could be readily reversed and, absent final orders, the use of the premises could recommence. (13) The premises were located in an environmentally sensitive area, near to Emigrant Creek and in an area of high water table. (14) The premises ought not to be used unless and until satisfactory plumbing and drainage arrangements had been made. Final orders are required to ensure regularisation of the plumbing and drainage arrangements of both the southern and northern buildings on the premises prior to any use recommencing (particularly given that there was evidence of use or potential use of the showers and plumbing facilities by a not insignificant number of persons previously). (15) The report of Mr Alderson (an engineer who provided a report on behalf the respondents), properly analysed, was beside the point. None of his evidence assisted the respondents. His report offended the principles in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. His report had not been prepared in accordance with the Court's Practice Direction No. 22 – Expert Witnesses or the Code of Conduct. His conclusions were unsubstantiated, and the factual substratum to support his conclusions had not been proven. In any event, Mr Alderson agreed that the document NSW Health "Greywater Reuse in Sewered Single Domestic Premises" dated April 2000 did not apply to the premises, agreed that the ship's head toilet was not and could not be approved and agreed that the tank near the northern building was not presently accredited. Where there was any dispute, the evidence of Mr Plumb and Mr Spring of the Council on the adequacy of the drainage arrangements would be preferred. 40 The respondents' principal contentions may be summarised as follows: (1) The works relating to the diversion of "greywater" (that is, wastewater not including human waste) to the absorption pits did not require any approval under the Local Government Act 1993. Such works were not "sewerage works" because they did not involve "human wastes" ("greywater" does not contain human wastes) or any septic tank, effluent or sullage disposal system. If the Council were correct, then (for example) councils would need an approval for all showers on the beach to wash sand off and the like and people could not wash their hands in a public place. This contention, I note, did not relate to the works involving the installation of the ship's head toilet and holding tank to the northern building and ancillary pipework, or the installation of the toilet and urinal in the southern building and their connection to the existing holding tanks for that building. (2) The respondents carried out the works relating to the diversion of "greywater" as a result of the Council forwarding to them the publication by NSW Health "Greywater Reuse in Sewered Single Domestic Premises" dated April 2000 (the "greywater policy"), with a covering handwritten note "Leanne, I realise this information is not exactly what you are looking for, but trust the more comprehensive info suits". The works were in accordance with the greywater policy. The Council had provided that policy and the respondents had followed it. (3) The Council had approved the works through the imposition of condition 6 on development consent 1996/93 (This consent relates to the northern building and authorised its use for a marine industry). Condition 6 states that all trade wastes, wastewaters and air impurities shall be contained and disposed of to the satisfaction of Council's Health and Building Surveyor and Engineer. Such disposal of wastes and wastewaters may require the installation of appropriate waste containment systems, designed to the satisfaction of Council's Health and Building Surveyor and Engineer. (4) All of the works that had been carried out far exceeded the standards in the Local Government Act 1993 and regulations. If the holding tank for the northern structure was not presently accredited, the facilities were capable of being accredited. An elevated tank was far superior to an in ground tank system, particularly given the instability of the land in the locality. (5) The system operated by separating all human waste streams from all other waste streams (that is, greywater). No approval was required to divert greywater into the absorption pits as greywater is not "sewage" as defined. As greywater is not sewage, that activity does not involve operating a system of sewage management. Again, I note that this contention did not relate to the works involving the installation of the ship's head toilet and holding tank to the northern building and ancillary pipework or the installation of the toilet and urinal in the southern building and their connection to the existing holding tanks for that building. (6) The absorption area for the southern building was in part located in the road reserve. The road reservation was wide and many other people had structures in the road reserve. The southern building was subject to a s 317A certificate which expressly stated that the Council would not require removal of the encroachments from the road reserve. (7) The system saved water and operated to a standard that far exceeded the requirements of the Local Government Act 1993 and regulations. The ship's head toilet arrangement would have been authorised on a boat, when such facilities on boats are subject to more onerous regulation than on the land. No one could complain if the same system was installed on a barge in Emigrant Creek. Also, the respondents sold those toilets (they run a marine industry) so it was reasonable for them to have a ship's head toilet for demonstration. Wastewater on the premises was thus being dealt with satisfactorily and the order pursuant to item 22 of s 124 was unjustified. (8) The inspections and tests carried out by Mr Spring were unfair and unsound. It had been raining heavily in the days leading up to that inspection and testing. Mr Spring, by his actions, had caused the system to fail. Mr Spring of the Council was biased against the respondents and motivated by malice. Even after Mr Spring had damaged the system, the greywater did not escape to Emigrant Creek but remained in the absorption area. Mr Spring's references to odour from or at the premises were belated and affected by his bias against the respondents and the Council's attempts to achieve a planning objective using its powers with respect to drainage. This was also shown by Mr Spring (repeatedly) going out of his way to inspect the premises without prior notice. Hence, wastewater was being managed (more than) satisfactorily on the premises. (9) The Council's actions in (repeatedly) inspecting the premises and serving the s 124 order were calculated to achieve an extraneous purpose – namely, to stymie the respondents' proposals for redevelopment of the premises. The Council's concerns with drainage arrangements were a pretext for the Council's objectives that were related to planning, not drainage considerations. (10) The respondents had complied with the s 124 order. (11) The evidence of Mr Alderson should be accepted. The operation of the statutory scheme 41 For the reason I gave in para 8, it is appropriate that I address the operation of the statutory scheme at the outset. I consider that the legislative scheme, insofar as it is relevant, may be summarised as follows. Requirement for approval for works 42 Absent an exemption in a local policy adopted under Part 3 (there being no exemption in the Act or regulations), a person required approval from the Council under s 68 to carry out any "sewerage work". The respondents claimed no exemption in a local policy. 43 "Sewerage work" means the construction, alteration, extension, disconnection, removal, ventilation, flushing or cleansing of any sewerage service pipes or fittings or fixtures communicating or intended to communicate, directly or indirectly, with: - (a) a septic tank, an effluent or a sullage disposal system, or (b) any sewer of a council, and includes work of sanitary plumbing and work of house drainage. 44 The installation of the ship's head toilet and holding tank to the northern building and ancillary pipework and the installation of the toilet and urinal in the southern building and their connection to the existing holding tanks for that building was "sewerage work". Those works required approval under s 68 of the Local Government Act 1993. The respondents' contentions that their works did not require approval as "sewerage work" related only to the arrangements for the diversion of wastewater ("greywater") to the sub-surface absorption areas/pits. I now address that issue. 45 The definition of "sewerage work" covers drainage (to use a neutral term at this stage) to both reticulated and non-reticulated systems of disposal. In both cases, "work of sanitary plumbing and work of house drainage" (which might otherwise have fallen outside the two classes of "sewerage work") is expressly identified as falling within that definition. The use of the "means and includes" formula in the definition of "sewerage work" operates to "…specify as falling within the definition that which might otherwise have been in doubt" (see, for example, Hepples v Federal Commissioner of Taxation (1990) 94 ALR 81 at 101 per Gummow J). Relevantly, in this case, "house drainage", is brought within the definition. 46 Although "sanitary plumbing" and "house drainage" are not defined in the Local Government Act 1993, "drain" is defined (a drain for the carrying off of waters other than sewage). "House drain", "soil pipe" and "waste pipe" are each defined in the Local Government (Approvals) Regulation 1999. A "house drain" collects discharges from both "soil pipes" and "waste pipes". "Soil pipes" collect discharges from human waste storage facilities (which involve holding or disposing of human waste – that is, human faeces and urine) or from operating theatres or morgues. In this context, "soil" must take the meaning of "filth" or "refuse", such as in "nightsoil". "Waste pipes" are all other pipes conveying discharges from fixtures (or operating theatres or morgues). In other words, a "house drain" collects both human waste and other liquid discharges from fixtures (whether or not human waste). 47 I consider that "house drainage" takes its ordinary meaning. According to any ordinary understanding of that term, it encompasses all of the various drainage streams associated with human residence, occupation and use, and is not limited to waste which includes human faeces and urine. This meaning accords with the overall scheme of the Local Government Act 1993 and the regulations to that Act (which apply across the State and thus across urban and non-urban areas, where it might be expected that large numbers of people may reside in proximity to one another). 48 The scheme of the Act and regulations thus (relevantly) required approval to be obtained to carry out work relating to human waste systems (systems dealing with human faeces and urine) and waste systems generally (systems dealing with all other discharges from fixtures associated with human habitation and use – such as showers, bathtubs, laundry tubs, kitchen sinks, sinks and the like). This operation of the statutory scheme does not depend on the meaning to be given to an effluent or a sullage disposal system, because "work of house drainage" is deemed to be included within the definition of "sewerage work". That is to say, works of house drainage required approval under s 68 of the Local Government Act 1993. The installation in the southern building of the new showers and hand basin and the connection of those facilities to the sub-surface absorption area/pit adjacent to the southern building, and the installation of the basin and shower on the mezzanine level of the northern building and connection of those facilities, and the sink, to the sub-surface absorption area/pit adjacent to the northern building were works of "house drainage" and thus were "sewerage works". 49 I consider this to be consistent with the meaning of the words "a septic tank, an effluent or a sullage disposal system" in the definition of "sewerage work". I am satisfied that those words encompass works of the relevant kind directing discharges of all liquid waste (not just liquid waste containing human faeces and urine) from premises. I reach this conclusion for the following reasons: (1) If the statutory scheme had intended that only works in connection with the removal of human waste required approval (or kitchen waste or washing machine wastewater – two items which the respondents may have been prepared to consider may require approval), and not the removal of wastewater from showers, bathtubs, showertubs and sinks, then that distinction ought to be apparent somewhere in the scheme. Instead, the scheme operates by distinguishing between sewerage works (in effect, the installation of facilities) and the operation of a sewage management system. Both require approval, but the considerations relevant to each are different. (2) None of the key definitions are limited to the concept of human waste (or, for that matter, kitchen waste or washing machine wastewater). (3) "Sewerage work" includes not only works connected with a septic tank, an effluent or a sullage disposal system, but also sanitary plumbing and house drainage (see above). (4) "Sewage" is defined inclusively. The inclusive definition operates by reference not to "human waste" (a defined term), but by reference to sub-para (a) of the (expansive) definition of "waste" which includes effluent, being any matter or thing, whether solid or liquid or a combination of solids and liquids, which is of a kind that may be removed from a human waste storage facility, sullage pit or grease trap, or from any holding tank or other container forming part of or used in connection with a human waste storage facility, sullage pit or grease trap. If the legislature had intended to limit the meaning of "sewage" to "human waste", then it could have used that defined term. It did not do so. I consider also that, construed in context, "effluent" and "sullage pit" take the meaning for which the Council contends (namely, that those terms are not to be limited to discharges containing human faeces and urine, but encompass all wastewater discharges from fixtures). (5) Other indications of the intended reach of the statutory scheme are apparent in the definitions in the Local Government (Approvals) Regulation 1999 of "sewage of a domestic nature" (inclusively defined), "sewerage services" (see the reference to "sewage or permitted discharges"), "trade waste" (see the reference to "domestic sewage"), "house drain (see above) and "waste pipe" (see the reference to "discharges"). Taking into account these considerations is not (impermissibly) to construe the Local Government Act 1993 by reference to the regulations, but to recognise the intended operation of the statutory scheme. (6) A primary purpose of the statutory scheme must be the protection of public health and safety and the environment. The phrase in sub-para (a) of the definition is used in distinction from work connecting to a Council sewer (regulated by sub-para (b)). All work within sub-para (b) requires approval (whether or not the discharge contains human waste). It makes little sense for connection of a shower or sink to the Council's sewer to require approval, but connection of a shower or sink to a septic tank or to a re-use treatment area not to require approval. In that context, assuming that discharges may be directed from premises to the ground without approval (merely because the discharges do not contain human faeces and urine, kitchen waste or wastewater from a washing machine) is inconsistent with the scheme as a whole and with the fundamental purpose of protecting public health and safety and the environment. (7) The respondents' argument to the contrary based on the legislation :- (i) inappropriately focuses on the word "sewage" in isolation from the statutory context as a whole, (ii) reads that word in a manner restricted to "human waste" (which is itself inconsistent with the inclusive nature of the definition and with the broader concepts which appear in sub-para (a) of the definition of "waste"), and (iii) fails to appreciate the requirement for approval for both works (sewerage works) and operation (operate a sewage management facility). (8) The respondent's argument to the contrary based on the greywater policy, for the reasons given below, is misconceived. The policy (if it applied to the premises – which it does not) does not affect the requirements for approval set by the Local Government Act 1993. (9) The respondent's argument to the contrary based on absurdity (that is, that beach showers and hand washing facilities in public places would also require approval) is not persuasive. If, in any particular case, such facilities require approval, then so be it. I do not consider that consequence absurd. Requirement for approval to operate a system of sewage management 50 The same considerations as I have set out above apply to the requirement for approval to operate a system of sewage management. At all relevant times, approval was required to operate such a system. Directing discharges of human wastes to septic tanks or holding tanks or related effluent application areas is to operate a system of sewage management. The respondents directed the new toilets and urinal described above to the tank systems on the premises. Use of those facilities was to operate a system of sewage management on the premises. 51 Use of the facilities directed discharges of wastewater not containing human wastes (from showers, baths, sinks) to the sub-surface absorption pits/areas on the premises which was also to operate a system of sewage management on the premises. This result necessarily follows from the matters I have set out in [48] and [49] above. 52 The actions of the respondents, whether those actions required approval (which I have in part addressed above) and whether such approvals were obtained, must be considered and determined in the legislative context that I have described above. As noted, that legislative context has in substance continued despite the repeal of the Local Government (Approvals) Regulation 1999. Its replacement, the Local Government (General) Regulation 2005 contains substantially similar provisions. Findings 53 It is apparent from the above summary of the parties' principal contentions that the disputes about primary facts are relatively limited. Those factual disputes mainly concern: - (i) the relevance of the greywater policy to the respondents' actions, (ii) the operation of certain consents and approvals relating to the premises, in particular condition 6 of development consent 1996/93, (ii) the legitimacy of the Council's purposes in serving the s 124 order, (iii) the attendances and inspection by Mr Spring, and whether Mr Spring was biased against the respondents or otherwise motivated by some illegitimate purpose (including malice), (iv) the compliance, adequacy and performance of the drainage arrangements on the premises (a matter which requires considering any approvals needed for both the installation of various facilities by the respondents and the operation of those facilities which are subject to separate approval requirements under the Local Government Act 1993) and, finally, (v) the need or otherwise for the making of final orders (if the Council establishes breach by the respondents). 54 I find as follows. The premises 55 The premises are known as No's 14–22 Smith Drive, West Ballina, being lot 1 DP 605260. The respondents own the premises and have done so since in or about 2000. They use the premises as part of a marine industry business known as Aero Marina Pty Ltd. The premises have a long frontage to Smith Drive to the west and Emigrant Creek to the east as shown on the survey plan DMK 2002-301. The survey also shows that the sealed part of Smith Drive is far narrower than the road reservation. To the east of the sealed bitumen surface is an area shown as shale on the survey which is at least as wide as the sealed surface. The survey also shows a shed on the southern end of the premises (which I call the southern building) and a shed at the northern end of the premises (which I call the northern building). The survey shows an encroachment by the southern building into the road reserve. Adjacent to that encroachment is a symbol designated "sand area". The survey shows an open drain adjacent to the northern building connecting to Emigrant Creek. 56 Although the respondents raised some concern about the accuracy of the survey with respect to the boundary of the premises with Emigrant Creek (apparently, the respondents had been in dispute with the Crown Lands Department about that boundary) and the "sand area", I accept the survey as accurate for all purposes relevant to my determination of the class 4 proceedings. 57 Smith Drive and the premises are located in an industrial zoning under the applicable environmental planning instrument. The premises are not serviced by the Council reticulated sewerage system. 58 The premises are within 100 metres (in fact abut) Emigrant Creek. The premises are located in an area with a high water table, the water table being between 600mm and 1.5 metres below the surface. 59 The southern and northern buildings existed on the premises in some form prior to the respondents' purchase of the premises in or about 2000. The southern building – consents and approvals 60 In 1979, the Council approved a building application, subject to conditions, relating to the southern and northern buildings. That approval described the existing southern building as a factory with a ground and first floor and approved additions to the factory and a new shed for the northern building. The specification, which was stamped as part of the approval, referred to all sewerage and wastewater drainage works being carried out in accordance with the (then) Local Government Act (that is, the 1919 Act). 61 On 23 December 1986, the Council granted development consent relating to the southern building to "convert a section of an existing industrial building for the purpose of a caretaker's residence", subject to conditions. The encroachment of the southern building into the road reserve is shown on a survey sketch from this time. The documents accompanying the development application state that the southern building "has a pump-out waste disposal system". 62 On 6 March 1987, the Council approved a building application, subject to conditions, relating to the conversion of part of the southern building into the caretaker's residence", subject to conditions. The plans approved by that application show a kitchen, dining room with a sink, living room and a bedroom upstairs and a shower, toilet and laundry downstairs. 63 A pump out facility, comprising two tanks and relevant pipework and connections, services the southern building. Although the Council's records system did not contain any approval for that pump out system, Mr Plumb of the Council (an experienced environmental health officer and a health inspector with 30 years experience, who holds tertiary qualifications in environmental health science) was satisfied that that part of the system was operating satisfactorily as at 20 September 2005. I accept that opinion of Mr Plumb. 64 The Council raises no particular issue (and seeks no orders) with respect to the plumbing and drainage facilities and fixtures within the southern building, although those fixtures and fittings do not accord with the approved plans which the Council's record keeping system has disclosed. 65 Insofar as the southern building is concerned, the focus of the Council's attention is the existence and use of the absorption pits adjacent to the southern building, which in part are located on the road reserve. Although, as I explain below, the premises are not presently being used and the connections in question have been capped, a number of the facilities in the southern building drained to these absorption pits. If reconnected, the facilities would still so drain. The principal facilities connected to the absorption pits are the shower and laundry tub in the downstairs section of the southern building (there was some dispute about the draining of a urinal to the absorption area. Mr Jacobson said that in or about 2000, he redirected the drainage from the urinal and the kitchen into the tanks, which I accept. Nevertheless, having regard to the opinions of Mr Spring and Mr Alderson, I also find that, with minor works, those facilities could be redirected to the absorption pits). The northern building – consents and approvals 66 The northern building is a smaller structure than the southern building. The 1979 building approval shows the northern building as a galvanised iron shed on a concrete slab. 67 On 23 November 1995, the Council granted development consent to use the northern building for marine industry (involving the repair and renovation of boats; sales and storage), subject to conditions. One of the conditions relied upon by the respondents is condition 6, which provides that: All trade wastes, wastewaters and air impurities shall be contained and disposed of to the satisfaction of Council's Health and Building Surveyor and Engineer. Such disposal of wastes and wastewaters may require the installation of appropriate waste containment systems, designed to the satisfaction of Council's Health and Building Surveyor and Engineer. 68 The development application form relating to the 23 November 1995 consent states in part "the existing vacant building to have an approved pump out toilet system installed". I do not consider that statement to form a condition of the consent (based upon the principles set out in Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 and 323 – 324 per Else-Mitchell J, Parramatta City Council v Shell Co of Australia Limited [1972] 2 NSWLR 632 at 637 per Hope JA, Auburn Municipal Council v Szabo (1988) 67 LGERA 423 at 433 to 434 per Hope J, Sydney Serviced Apartments v North Sydney Municipal Council [No 2] (1993) 78 LGERA 404 at 407 – 408 per Handley JA, Hubertus Schuetzenverein Liverpool Rifle Club Limited v Commonwealth of Australia (1994) 51 FCR 213; 85 LGRA 37 at 43 to 46 per Wilcox J, and Woolworths Limited v Campbell's Cash and Carry Pty Ltd (1996) 92 LGRA 244 at 249, 251 per Sheller and Cole JJA respectively). The relevant condition is condition 6 quoted above. 69 On or about 11 December 1995, the then owner of the premises lodged an application to install a septic tank relating to the northern building. The application refers to the connection of one hand basin, a WC with a certain flush capacity, a septic tank of 2050 litres capacity and a collection well of 2050 litres capacity. The Council approved the application on 2 January 1996, subject to conditions (including conditions requiring that the collection well be fitted with float switches connected to an audible and visual alarm system). This approved pump out system has not been constructed with respect to the northern building. The Council contends that this approval has lapsed (which the respondents dispute), but I do not need to resolve that issue. 70 The northern building includes a mezzanine level that the Council contends has not been approved. The Council, however, seeks no orders with respect to the presence of that level in these proceedings. That level has within it a ship's head toilet, a shower and wash-basin. There is another sink on the ground floor level. The northern building is serviced by a single tank of about 1100 litres capacity. The tank is elevated and has connected into it a grey hose. The outlet to this tank is situated approximately 3.2 metres from an open tidal drain leading to Emigrant Creek. Prior to certain works carried out by the respondents in 2005, the sink on the ground floor, the shower and wash-basin on the mezzanine level drained to a rubble absorption pit near the northern building. The ship's head toilet drained to the tank. In 2005, the respondents caused works to be carried out whereby the basin and shower were connected to the tank rather than the rubble absorption pit. By September 2005, the sink on the ground floor drained into a bucket. The respondents 71 The respondents own the premises and are in a domestic relationship. Mr Jacobson gave evidence that he was primarily responsible for making decisions with respect to the premises (which I accept). I am satisfied, however, that the respondent Ms McMillan, by reason of the facts of joint ownership, the circumstances of her relationship with Mr Jacobson, her presence at the premises at various times, and her actions during inspections by Council officers, was aware of and participated in causing the works at the premises (described below) to be carried out. As such, I draw no distinction between the respondents in these reasons. The 2002 works were all "sewerage works" 72 Mr Jacobson gave evidence in the proceedings, by way of affidavits (which were read) and orally. In cross-examination, Mr Jacobson said that he had carried out or caused to be carried out works to both the southern and the northern buildings between 2000 and 2002. 73 Mr Jacobson said that he had improved both buildings, making them "first class" facilities. I am satisfied that the works the respondents carried out or caused to be carried out between 2000 and 2002 included: (1) To the southern building: - (i) removal of the plumbing facilities from the upstairs, installing new facilities including a shower and shower tub, a toilet, urinal and hand basin, and connection of those facilities to the sub-surface absorption area/pit adjacent to the southern building which is located in part on the road reserve, and (ii) installation of a new shower and wall in the downstairs section; and (2) To the northern building: - (i) installation of the ship's head toilet, connection of that toilet to the water mains and to the piping which is connected to the elevated tank, (ii) installation of the elevated tank and associated pipework, including the pipework which enables the tank to be emptied by suction, (iii) connection of a sink to the sub-surface absorption area/pit adjacent to the northern building, (iv) installation of the basin and shower on the mezzanine level and connection of those facilities to the sub-surface absorption area/pit. The use of the 2002 works 74 Although the operation of these facilities varied over time, I am satisfied that, prior to the works in 2005: (1) The southern building's showers, urinal and hand basin drained to the absorption area/pit. The respondents altered that drainage in 2002 so that the urinal drained to the septic tank system. Otherwise, those facilities continued to drain to the absorption area/pit until the use ceased pursuant to the interlocutory orders. The toilet drained to the septic tank system (that is, the two tanks near the southern building which have a capacity of about 2050 litres each). (2) The northern building's ship's head toilet drained to the elevated tank. The sink, basin and shower drained to the absorption area/pit until the use ceased pursuant to the interlocutory orders. 75 I am not prepared to draw an inference that the respondents constructed or caused to be constructed the absorption area/pit to the southern building or the absorption area/pit to the northern building. The respondents, however, used and caused to be used those facilities as part of their operation of a system of sewage management on the premises. The 2002 works required approval 76 I am satisfied that all of the works carried out or caused to be carried out by the respondents (see [73] above) required approval under s 68 of the Local Government Act 1993, there being no exemption from that requirement. The works required approval as the carrying out of "sewerage works" (the Table to s 68, Part B, item 4) and, in part (that is, the works relating to the toilets and urinal), as the installation, construction or alteration of a waste treatment device or a human waste storage facility or a drain connected to any such device or facility (the Table to s 68, Part C, item 5). The operation of the 2002 works required approval 77 I am satisfied that the operation of all of the 2002 works (that is, their use as described in [74] above) required approval as the operation of a system of sewage management (the Table to s 68, Part F, item 10 and clause 45 of the Local Government (Approvals) Regulation 1999 and/or s 68A of the Local Government Act 1993). That is, I am satisfied that approval was required to direct human faeces and urine from the toilets and urinal to the various holding tanks, and to direct wastewater from the fixtures within the southern and northern buildings (whether or not that wastewater contained any human faeces and urine) to the sub-surface absorption areas adjacent to the southern and northern buildings. Use of the premises prior to cessation pursuant to interlocutory orders 78 I am satisfied that the respondents used or caused to be used the premises as part of a marine industry business which they run, known as Aero Marina Pty Ltd. The precise intensity of use of the premises (prior to its cessation consequent upon the interlocutory orders), however, is not clear. 79 I am satisfied that two people occupied the caretaker's flat in the southern building for residential purposes at various times. At least one other person, perhaps more, used the shower and basin facilities in the downstairs section of the southern building. This person appears to have lived on a boat moored off the premises, but used the downstairs shower facilities. Their connection, if any, to the marine industry business is not apparent. 80 The respondents used or caused the use of the northern building for marine industry purposes (although the number of people involved in that activity is not apparent). The northern building has a mezzanine level. Mr Jacobson referred to that level as "the studio", which suggests that that level may have been used for some form of accommodation, but I am not able to make a finding to that effect. 81 At various times, however, up to 14 or 18 boats were moored off the premises, with 4 or 6 boats in dry dock on the premises and perhaps 30 boats in total being present (on or moored off the premises) at any time. I am satisfied that there was (and if use of the premises re-commences, is) real potential for the sanitary facilities at the premises to be used by persons other than those living or working in the buildings. The greywater policy 82 I consider that the greywater policy is of limited, if any, relevance to the question whether the 2002 works carried out or caused to be carried out by the respondents and the operation of those works required approval. If anything, the policy discloses why approval would be required for all components of the 2002 works and their operation. In particular, the policy explains that greywater (in summary, wastewater from all household facilities which does not contain human waste) has a high potential to contain pathogenic micro-organisms which may be potentially infectious and polluting. (I note, moreover, that greywater is referred to at page 2 of the policy as "sullage"). 83 The policy distinguishes between greywater excluding kitchen waste and greywater including kitchen waste. The latter is likely to contain higher levels of micro-organisms than the former. The policy applies only to single domestic premises in a sewered area. The subject premises are not single domestic premises and are not in a sewered area. Hence, the policy is inapplicable to the premises. 84 The policy refers to greywater diversion devices (which do not treat greywater) and domestic greywater treatment systems (which treat greywater). There was debate in this case as to whether the arrangements at the premises involved a greywater diversion device. I consider that debate immaterial for a number of reasons. First, the greywater policy does not apply to the premises. Secondly, the greywater policy has no statutory force or effect. Thirdly, nothing in the greywater policy suggests any exemption from any approval requirement. There is a table of approvals required on page 13 of the policy. That table does not replace the provisions of the Local Government Act 1993 and has no effect on those provisions. Moreover, the table shows, if anything, that approval is required to operate a greywater diversion device but not to install such a device (on the narrow definition of such a device adopted in that policy – in effect, a switch which operates by gravity or pump). 85 I cannot see anything in the greywater policy suggesting that, where the policy applies, it provides an exemption from any approval requirement. If the works carried out or caused to be carried out by the respondents were intended to respond to the policy, then the requirement to obtain approvals from the Council for the 2002 works ought to have been plain to the respondents. Equally, the risks to the environment and public health associated with draining greywater from showers and sinks and the like to absorption areas in the ground, in close proximity to Emigrant Creek in an area with a high water table, ought to have been plain to the respondents. This is particularly so given that the policy makes clear that the characteristics of greywater (unsurprisingly) alter depending upon the characteristics of use by occupants. 86 Nothing in the greywater policy or the circumstances in which the Council provided it to the respondents (that is, the reference to the handwritten note on the policy which I accept to be from a Council officer) required the respondents to carry out the 2002 works, or gave any approval (tacit or express) to those works. The respondents may have elected to rely on the greywater policy, but that reliance was a choice by the respondents (not a requirement of the Council). Any belief that the respondents held that the greywater policy exempted them from the Local Government Act 1993 approval requirements was in error (particularly when it is recognised that the policy does not apply to the premises and does not operate so as to exempt any person from any requirement for approval). As such, I consider the issue that was the focus of much of the respondents' evidence and submissions (that is, whether they had installed greywater diversion devices on the premises) to be beside the point. The point is that the respondents installed or caused to be installed the sewerage works I identified above and operated those works. 87 The greywater policy, at best, is relevant to the intentions of the respondents in carrying out the 2002 works. Intention, however, is not relevant to the question of breach of s 68 (or s 68A). Breach is established by reference to the facts objectively ascertained and not by reference to the respondents' intentions. Mr Alderson's evidence relevant to the issue of breach 88 Mr Alderson is a chartered professional engineer (civil) with substantial experience in local government and wastewater engineering and management. Nothing in the evidence of Mr Alderson about the greywater policy affects the conclusions that I have reached above. Indeed, Mr Alderson agreed in cross-examination that the greywater policy did not apply to the premises. Hence, his opinion that the systems involved a greywater diversion device is beside the point. 89 Mr Alderson's evidence was otherwise directed to the capacity, adequacy and performance of the systems and the capacity for the elevated tank to the northern building to be accredited. Those matters are not material to the issue of breach. Did the 2002 works and their use require and have approval? 90 For the reasons I have given above, the carrying out of the 2002 works by the respondents required approval under s 68 of the Local Government Act 1993 (the Table to s 68, Part B, item 4 and Part C, item 5). The use of those works also involved the operation of a system of sewage management that required approval under the Local Government Act 1993 (the Table to s 68 Part F, item 10, and clause 45 of the Local Government (Approvals) Regulation 1999 and/or s 68A of the Local Government Act 1993). The next issue is whether the respondents had approval to carry out and use those works. 91 The respondents relied upon condition 6 of the 23 November 1995 consent as an approval for the carrying out and operation of the works. I consider that reliance to be misplaced. 92 Condition 6 of the 23 November 1995 consent was not an approval to carry out any of the 2002 works or to operate a system of sewage management. 93 First, the consent relates to the northern building and not the southern building. 94 Secondly, condition 6 required the works to be to the satisfaction of the Council's Health and Building Surveyor and Engineer. There is no evidence of that satisfaction. The evidence of Mr Plumb and Mr Spring was to the contrary. Mr Plumb is an Environmental Health Officer of the Council. Mr Plumb was not satisfied with respect to the waste containment systems other than the arrangement in the southern building under which the toilet drained to the septic tank system. Mr Plumb was otherwise dissatisfied with the wastewater arrangements on the premises. He identified three significant risks associated with the arrangements in the southern building ((i) a significant risk of people using the shower being directly exposed to contaminants by the system surcharging, (ii) significant dangers to users of Smith Drive where the waste water is also surcharging, which Mr Plumb described as equivalent to "the throwing of slops into public roads as occurred in the nineteenth century", and, finally, (iii) entry of pathogens into receiving waters, Emigrant Creek, which is tidal, and which forms part of the Richmond River Estuary where oyster growing occurs). As explained below, I find Mr Plumb to be a credible and careful expert with many years of specialised experience and qualifications. 95 Thirdly, nothing in condition 6 suggests that the condition has the effect of waiving any requirement to obtain the approvals required for wastewater systems and operation. That is, if works had to be carried out to comply with the condition, and that work required approval, nothing in the condition waived the requirement to obtain that approval. 96 I also consider that the respondents' submission that the ship's head toilet is a "demonstration model" ancillary to the marine industry use (and thus, presumably, did not require approval) should not be accepted. First, the toilet was not a demonstration model; it was connected to the elevated holding tank and the mains water supply, and, I infer, was used as an ordinary toilet facility in the northern building. Secondly, in order to demonstrate a toilet model, it need only be shown, not connected. Thirdly, even if a demonstration model, all toilets that are installed were required to comply with the Local Government (Approvals) Regulation 1999 (now the Local Government (General) Regulation 2005). The ship's head toilet does not comply with certain basic requirements of that regulation. Finally, this argument came late in the day in submissions and not in any part of the respondent's evidence. 97 I do not consider that the other matters referred to in para 6 of the affidavit of Mr Jacobson sworn 8 September 2005 support the contention that the 2002 works had the approval which they required. 98 I do not accept the respondent's submission that the absence of any record of approval merely demonstrates the absence of the record and not the absence of any approval. In particular, Mr Plumb described the Council's records of sewage approvals as "fairly good" and that he was "reasonably confident" that had there been any approval granted for sewage works, he would have located that approval in the Council's records. Mr Plumb carried out a thorough search of the Council's records. No approvals for the 2002 works were disclosed. I accept Mr Plumb's evidence. 99 Moreover, I accept that components of the 2002 works were incapable of approval because: - (i) the works did not comply with the Local Government (Approvals) Regulation 1999, and (ii) s 89(1)(a) of the Local Government Act 1993 would have operated to preclude the grant of any approval. In particular, all of the evidence (including that of Mr Alderson) is to the effect that the ship's head toilet does not comply with the requirements of the Regulation (cl 13 and Sch 2 para 6). Nor (presently at least) does the elevated tank near the northern building (cll 13,42 and 43). 100 Finally, the respondents did not refer to any application for approval of the 2002 works. 101 The same considerations apply to the use of the 2002 works as part of the operation of a system of sewage management. 102 From the facts that I have found above about the nature and location of the works, I consider that the 2002 works and their use required, but were not the subject of, approval. That is, the works and their subsequent operation were carried out in breach of the Local Government Act 1993. The operation of the system prior to the interlocutory order 103 The observations and opinions of Mr Spring constitute the Council's primary evidence with respect to the operation of the drainage systems on the premises prior to the interlocutory orders of the Court. Mr Spring is employed by the Council as the On-Site Sewage Management Officer and, as such, oversees matters concerning sewage in Ballina. He is a qualified plumber. He does not presently hold the required licence to carry out plumbing works, but is entitled to hold such a licence. Mr Spring has been employed by the Council since 2002, and has held his present position since 2003. I accept that Mr Spring holds expertise (based on specialised training and experience) relevant to the matters the subject of his expert opinion in these proceedings. 104 Mr Spring first attended the premises in the course of his duties on 4 February 2004, following the Council's receipt of a complaint with resect to odour at Smith Drive. He observed long grass, pooling of slimy green liquid on the ground, and large amounts of algae within this liquid on the road shoulder in front of the southern building on the premises. He also noted a strong scent of effluent. He knocked on the door of the upstairs section of the southern building (the caretaker's unit) and spoke to Vanessa Webb who said she lived there with her flatmate. I accept these observations as accurate (and deal further with Mr Spring's evidence below). 105 Mr Spring returned to the premises on 15 March 2004 with a Council planner, Ms Naomi Hing. They went to the northern building and met the respondent, Ms McMillan. Ms McMillan contacted Mr Jacobson, who arrived shortly thereafter and indicated that as he had legal representation, the Council should deal with his attorney. Mr Spring and Ms Hing left. Mr Spring observed the two holding tanks at either end of the premises and that the ground around them was wet and boggy. I accept these observations as accurate. 106 On 2 April 2004, Mr Spring again attended the premises. The respondents, their solicitor and Mr Plumb were all present. Mr Spring observed the absorption pit area adjacent to the southern building and in part on the road reserve. Mr Spring had a conversation with Mr Jacobson about the depth of the pits that Mr Jacobson said were about 1.5 metres deep, with the groundwater being about one metre deep according to Mr Jacobson. The area was covered by sand. Mr Spring described the absorption pits area as within 25 metres of Emigrant Creek, which is generally consistent with the survey plan. Mr Spring observed two holding tanks servicing the southern building of about 2000 and 3000 litres capacity respectively, plus the absorption pits area. Mr Spring inspected the northern building and the elevated holding tank. The tank outlet was approximately 3.2 metres from the tidal drain leading to Emigrant Creek. Mr Jacobson pointed out an absorption pit area near the elevated holding tank. Mr Spring placed dye in the "sewage management facility" near the northern building (whether this was the tank or the pit I cannot ascertain). In any event, when Mr Spring returned the next day to check the banks of Emigrant Creek for any traces of dye, in company with Mr Jacobson, he found no such traces. I accept this evidence. 107 Mr Spring served a notice of intention to give an order on the respondents on 28 May 2004. On 29 July 2004, Mr Spring attended the premises with a surveyor, Mr Kelly. Mr Kelly carried out certain survey works at the premises including the placement of pegs. Mr Spring smelt a strong effluent odour on this occasion. Mr Kelly gave Mr Spring the survey plan later that day (a copy of which was tendered). On 21 October 2004 Mr Spring caused to be served on the respondents an order under s 124 (item 22 of the Table) to the Local Government Act 1993. I accept this evidence. 108 The s 124 order required the following works: WORKS REQUIRED. To comply with this Order you must: Utilise the services of a suitably qualified & competent NSW licensed plumber (NSW Department of Fair Trading requirement), to undertake the following works, so as to meet the technical specifications required by Council: Southern-most structure, (industrial shed & associated caretaker's residence): 1. Cease discharging domestic wastewater to the public road reserve and into the unapproved and failing absorption pit. 2. Divert the said wastewater into existing holding tanks. 3. Remove all piping used to convey the domestic wastewater to the absorption area situated on the public road reserve. 4. Sanitise and deodorise the area on the public road reserve impacted by the discharge of domestic wastewater from the property. (Fine Ag lime can be used for this). 5. Install an audible and visual level indicator alarm to the holding well. The alarm is to be set so as to not exceed 75% of the holding tanks capacity, or when 3 days flow capacity remains available in the tanks. 6. Enter into a written contract with an approved pump out operator to regularly pump out holding tanks. 7. Submit to Council a copy of the pump out contract. 8. All works carried out on the public road reserve shall be done in a manner that ensures the safety of the public at all times. 9. Council strongly recommends that all services situated in the public road reserve be identified and located prior to the commencement of any works to prevent damage to any public utilities. NB: Telecommunication cables are present in the close vicinity. 10. Plans of any proposed works shall be submitted to Council for approval prior to commencement of works. Northern-most structure, (industrial shed approved as part of BA 56/79): You have two options: 1. Under Division 2 of the Local Government (Approvals) Regulation 1999, you are required to make an application to Council for approval to install/construct a SMF. Under the Regulation the application must be accompanied by the following documents: Plan. The application must be accompanied by a plan, to scale, showing the location of: (a) the sewage management facility (SMF) to be installed or constructed on the premises, and (b) any related effluent application areas, and (c) any buildings or facilities existing on, and any environmentally sensitive areas of, any land located within 100 metres of the SMF or effluent application areas, and (d) any related drainage lines or pipe work (whether natural or constructed). Specifications. The application must be accompanied by full specifications of the SMF proposed to be installed or constructed on the premises concerned. Site Assessment. The application must be accompanied by details of the climate, geology, hydrogeology, topography, soil composition and vegetation of any effluent application areas related to the SMF together with an assessment of the site in light of those details. Statement. The application must be accompanied by a statement of: (a) the number of persons residing, or probable number of persons to reside, on the premises, and (b) such other factors as are relevant to the capacity of the proposed SMF. Operation and Maintenance. The application must be accompanied by details of: (a) the operation and maintenance requirements for the proposed SMF, and (b) the proposed operation, maintenance and servicing arrangements intended to meet those requirements, and (c) the action to be taken in the event of a breakdown in, or other interference with, its operation. and I. Cease discharging domestic wastewater to the pit adjacent to the existing tank. II. Divert all wastewater into an approved SMF. III. Install audible and visual level indicator alarm to the holding well. The alarm is to be set so as to not exceed 75% of the holding tanks capacity, or when 3 days flow capacity remains available in the tanks. IV. Enter into a written contract with an approved pump out operator to regularly pump out holding tanks. V. Submit to Council a copy of the pump out contract. OR 1. Alternatively install a NSW Health certified tank/holding well sized according to the relevant regulations and to Councils satisfaction. and I. Cease discharging domestic wastewater to the pit adjacent to the existing tank. II. Divert all wastewater into an approved SMF. III. Install audible and visual level indicator alarm to the holding well. The alarm is to be set so as to not exceed 75% of the holding tanks capacity, or when 3 days flow capacity remains available in the tanks. IV. Enter into a written contract with an approved pump out operator to regularly pump out holding tanks. V. Submit to Council a copy of the pump out contract. VI. Plans of any proposed works shall be submitted to Council for approval prior to commencement of works. All works must be in accordance with the performance standards set out in clause 47 of the Local Government (Approvals) Regulation 1999, AS/NZS 3500, AS/NZS 1547, and The NSW Code of Practice Plumbing and Drainage. 109 The respondents appealed against the s 124 order on or about 10 December 2004. This appeal, as noted, was discontinued on 8 April 2005 by consent. The consent orders filed with the Registry provided that: 1. The Applicant discontinues these proceedings. 2. The Applicant shall comply with the Order of the Respondent dated 21 October 2004 made under s 124 of the Local Government Act 1993 in respect of premises situated at Lot 1 DP 605260, No. 14 Smith Drive, West Ballina, NSW within thirty (30) days. 3. The Applicant shall pay the Respondent's party/party costs in the sum of $5,720.00 inclusive of GST and inclusive of disbursements within thirty (30) days. 110 I do not consider that order 2 of the consent orders does anything more than restate the requirements of the s 124 order itself. For this reason, I do not give weight to order 2 in the exercise of my discretion. 111 Mr Spring attended at the premises again on 14 June 2005, with an Environmental Health Officer, Rachel Currie. Mr Spring gave notice of the proposed entry to the premises, which Mr Jacobson denies having received until after the entry had taken place (as noted below, Mr Jacobson relies on this fact, and other entries he says occurred without notice, to support his contention that Mr Spring is biased against the respondents). Mr Spring and Ms Currie spoke to a young man. Mr Spring gave the young man a copy of the notice of entry proposed for the next day, 15 June. For the reasons explained below, I do not accept the respondents' allegations of bias against Mr Spring and, in any event, do not accept that the circumstances of entry to the premises are material to resolving the real issues in this matter. 112 Mr Spring and Ms Currie returned to the premises on 15 June 2005. Mr Spring took photographs around and through the window of the northern building showing the elevated tank and piping and the ship's head toilet. They went to the southern building and met a young man at the gates that had previously been locked. After a brief conversation, they entered the downstairs part of the southern building. Another man came over to them and they had a longer conversation. They continued the inspection. Mr Spring smelt a strong odour of effluent. I accept these matters. 113 Mr Spring and Ms Currie entered the amenity area downstairs in the southern building. Mr Spring saw a shower with boards laid in the bottom of the shower covered in black slime. He removed the board and smelt an extremely strong smell of effluent. He saw algae and slime under the boards. He saw a toilet and a wash/laundry tub. Mr Spring added dye to the toilet and flushed it. He added dye to the tub and ran the tap. The odour in the room increased to the point that Mr Spring began to feel ill. He heard gurgling noises from the shower and observed the green dye surcharging into the shower tray. The tap, at that time, had been running for just under a minute. The odour was so bad that Mr Spring had to leave the room. Mr Spring went to the absorption pits area. He observed that the grass was waterlogged to the extent that it lifted up, floated and moved considerably underfoot when walked upon. He observed liquid flowing across the ground. After a minute or two he saw the green dye flowing across the ground which then pooled in a pool point near the shed. He returned inside and turned off the tap which had been running for about 10 minutes. He saw that the green dye was seeping back into the building and that the shower tray was nearly full. The smell of sewage was overpowering and Mr Spring left the building. After packing up and taking some more photographs, Mr Spring and Ms Currie left. I accept this evidence. 114 Ms Currie gave evidence of the 15 June 2005 inspection in terms to the same effect as Mr Spring. Ms Currie's affidavit refers to Mr Spring using a crow bar to pierce the ground in the area of the absorption pits (which Ms Currie described as having an unusual texture and akin to walking on a waterbed). Ms Currie says that the greywater came through the hole which Mr Spring had created with the crow bar and that, after about 7 minutes, the water which was coming out of the ground was discoloured by the dye. I accept Ms Currie's evidence. I do not see that the differences between Mr Spring's and Ms Currie's evidence, such as they are, are material to the issues in the case. 115 Mr Plumb was not present during the 15 June 2005 inspection. Based on Mr Spring's observations, Mr Plumb gave evidence in his 23 August 2005 affidavit that the situation described by Mr Spring gave rise to three significant risks. Those risks are described by Mr Plumb as follows: 15. Firstly any person using the amenities area of the southern structure is at significant risk of direct exposure to contaminants as a result of the system surcharging. This health risk is increased when the relevant waste originates from more than one person or family which is usually the case in an industrial type situation. 16 During the nineteenth century, the basic principle of protection of health from the dangers of human waste water was to place a barrier between human beings and their waste. In this case the barrier is non-existent. Worse still, users of the showering facility are exposed to what is in fact a de facto grey water storage facility. Because the system's absorption pit is defective, the pipes leading to the system and the shower floor and waste store and grey water in circumstances where direct skin contact with it is highly probable. The facility is not clean and is impossible to clean or disinfect due to the organics and suspended solids present in the surcharging waste water. Stored grey water rapidly becomes septic and gives rise to offensive odours as were observed by Mr Spring in paragraph 54 of his Affidavit. Septic grey water provides conditions for the rapid multiplication of micro-organisms, 10-100 times in the first 24-48 hours. 17 The presence of a laundry tub in the amenities area as set out in paragraph 51 of Mr Spring's Affidavit indicates the potential for the system to receive faecal matter from washing underwear or nappies or cleaning clothing soiled by vomit. Accordingly there is a significantly high risk that the grey water contains human pathogens such as human gastro intestinal organisms, which might potentially include bacteria, viruses and protozoans. In addition chemicals, soap, detergent and other material may have been washed from clothing. Examples of pathogens that could be present in the grey water include viruses such as Hepatitis A and protozoans such a Giardia and Cryptosporidium all of which are capable of causing gastroenteritis particularly in children. 18 Secondly there are further significant dangers to the health of users of the public road where the waste water is also surcharging. Allowing the disposal of grey water by an unauthorised trench to an absorption pit surcharging onto a public road is tantamount to the throwing of slops into public roads as occurred in the nineteenth century. In addition to the foul odour produced, the risk to public health arises if persons walk through the affected area and bring the material into premises on their shoes. There is a potential risk to workers having to access services on the public road. There is a risk to children who may play in the vicinity and come into contact with the waste water via their feet or hands. 19 The third significant risk from these failing on site sewage management facilities is to the environment. Grey water carries suspended solids and organic material as well as plant nutrients and potentially pathogens. These materials are capable of changing the nature of receiving waters. The absorption pits at this site are approximately 1.5 metres deep. As such, they are below the root zone where nitrogen can be removed by plants. Phosphorus removal by soil is rarely complete and the proximity of this site to Emigrant Creek is such that it is highly likely that these elements shall be washed by storm flow to the estuary. Breakdown of the organics results in an increased biochemical oxygen demand, which has the potential to lower the level of oxygen in the receiving waters. These processes are cumulative and I am extremely concerned because of the proximity of these failing on site sewage management systems to Emigrant Creek that is a tidal waterway forming part of the Richmond River Estuary where oyster growing occurs. 116 I accept the opinions of Mr Plumb as set out above. The allegations against Mr Spring 117 Mr Spring and Ms Currie were required for cross-examination. (1) The respondents said that Mr Spring attacked the plumbing system with a crow bar (being a matter omitted from Mr Spring's, but not Ms Currie's affidavit). Mr Spring denied this allegation. He said that he tested the system by using the crow bar to separate the grass cover in the area of the absorption pit on the road reserve. I accept that the actions of Mr Spring in this regard were reasonable and appropriate in order to test the operation of the system. I also accept that the omission of reference to the crow bar from Mr Spring's affidavit was an oversight (particularly given that his affidavit included photographs of the crow bar). (2) The respondents said that Mr Spring's dye test was meaningless because dye had been put in both the toilet and the laundry tub. Mr Spring said that the toilet system had been working. After placing dye in the toilet, he checked for the dye in the holding tank, before placing dye in the laundry tub. I accept that the tests carried out by Mr Spring disclosed relevant information to his assessment of the operation of the system – namely, that the laundry tub and shower were connected to the absorption area and the shower and absorption area were capable of surcharge in the circumstances of that test. (3) The respondents said that that it was raining heavily for days prior to 15 June 2005 and that morning. Ms Currie did not recall. Mr Spring recalled that it had been raining at some time, but was not raining when he inspected the premises on 15 June 2005. I consider rain (even heavy rain) to be a circumstance with which such systems must satisfactorily cope – the surcharging of effluent from the laundry tub back into the shower and from the absorption area is not satisfactory for all of the reasons given by Mr Plumb. 118 As noted, the respondents said that Mr Spring was biased against them and motivated by malice. The respondents rely on a number of matters to support this contention. Given the seriousness of this allegation, it is appropriate that I deal with it in some detail. The respondents principally rely on the following: - (1) Mr Spring called Mr Jacobson "the American guy" before his first meeting with him. I consider the reference to Mr Jacobson as the "American guy" to have been for the purpose of identification. I would not read the reference as in any way pejorative. (2) Mr Spring went out of his way to attend at the premises at 7.45am one morning intending to observe whether people were living on a dry docked houseboat on the premises. Mr Spring said he had gone to check the premises with that intention and believed that fact to be relevant to potential effluent loads on facilities at the premises – a belief which I consider sound. (3) Mr Spring never mentioned any issue with odour at the premises until the s 124 order was served on 1 October 2004. That is correct by reference to the Council records tendered, but I consider that immaterial in the light of the evidence of Mr Spring that I have accepted. (4) Mr Spring was motivated by "planning" not "sewage" considerations, and wished (as did the Council) to use the issue of sewage to prevent the respondents' plans for redevelopment of the premises being implemented – this was the reason that Ms Hing, a planner, attended with Mr Spring at the premises. Mr Spring said that his concerns about the use of the premises were relevant to sewage management. I consider this to be sound. As explained below, the management of wastewater and the nature and intensity of uses of land are interrelated. The respondents' apparent belief that a council may not have regard to the management of wastewater in assessing whether a land use is appropriate is misconceived. (5) Mr Spring intended that the system should fail and caused it to fail by his actions on 15 June 2005, particularly by use of the crowbar, which Mr Spring had omitted from his affidavit along with other matters. I have addressed this matter above. (6) Mr Spring attributed words to Mr Jacobson that Mr Jacobson had not said. Mr Spring said that he had taken notes of the conversations that he had used to prepare his affidavits. He had not retained the notes. I accept that Mr Spring's affidavits accurately record the effect of his conversations with Mr Jacobson. (7) Mr Spring acted so that the respondents did not get prior notice of entry, a matter said to be part of a course of conduct relating to entry without notice. Mr Spring explained the steps he had taken to give notice of entry, which I accept as appropriate for the reasons I give below. (8) After the interlocutory orders, Mr Spring again wished to enter the buildings when he could have checked for compliance by inspecting the exterior of the buildings. Mr Spring said that he could not check for compliance from the outside of the buildings and needed to check the plumbing connections within the buildings and below the floors to see if the interlocutory orders had been satisfied. I accept that evidence. 119 The allegation of bias against a council officer is a serious matter. It is an allegation that should not be made lightly. I consider that nothing in the records of the Council tendered or read into evidence, the evidence given by or on behalf of the respondents, or the evidence given by Mr Spring, supports the allegation that he was or is biased against the respondents, or that he was or is in any way motivated by some malice against them. I consider Mr Spring's actions to have been proper and carried out in the ordinary course of discharging his functions as an officer of the Council. I accept the answers that he gave to the matters put against him (summarised above), which answers I find show an officer of a council acting appropriately in carrying out his functions. I reject the respondents' allegations against Mr Spring of improper conduct. 120 In particular, it appears to me that Mr Spring was scrupulous in giving notice of entry to the premises (see ss 193 and 710 of the Local Government Act 1993 – notice was given by Mr Spring as required irrespective of actual receipt by the respondents). Mr Spring was entitled to attend the premises if he had reasonable grounds to suspect an unauthorised activity or use. Mr Spring was also entitled to test the sewage and drainage systems on the premises (s 192 of the Local Government Act 1993). 121 I do not consider the absence of reference to odour at the premises in Mr Spring's documents prior to 21 October 2004 of significance, particularly in the face of the detailed observations made by Mr Spring and Ms Currie on 15 June 2005, which I accept. For the same reasons, I do not accept Mr Jacobson's references to a tide chart and the likely direction of odour on or about 7 December 2003 (the date of a complaint to the Council about odour in the Smith Drive area) as material. Whether or not the premises were the source of the odour the subject of the complaint on that particular day is peripheral to the real issues which arise in this matter. I am satisfied that, based on the evidence of Mr Spring, Ms Currie and Mr Plumb, the arrangements for wastewater management on the premises gave rise to a real risk of unacceptable odours both on and outside the premises. Conclusions on the operation of the system prior to interlocutory order 122 I consider that the observations made by Mr Spring and Ms Currie, irrespective of the dye tests, show that the drainage arrangements at the southern building were highly unsatisfactory. I accept the evidence of Mr Plumb and the three significant risks he identified to support this conclusion. 123 Mr Alderson gave evidence that the dye tests were invalid, in effect, because dye had been placed in the toilet as well as the laundry tub, and the tap had been left running for 10 minutes, which would have overloaded the system by discharging some 200 litres in that period (rather than the 150 to 160 litre capacity that would ordinarily be expected). Mr Spring and Mr Plumb were of the opinion that the tests were valid. 124 It appears to me that the dispute between the experts is best resolved by considering the purpose of the dye tests. I infer that the purpose was primarily to ascertain whether water from the shower and the laundry tub was discharging to the absorption area rather than the tanks, and to give a general understanding of the operation of that system. The tests were apt for that purpose. I thus prefer the opinions of Mr Spring and Mr Plumb with respect to this issue. 125 Moreover, I consider Mr Alderson's opinions on the validity of the dye tests to be largely beside the point. A primary issue that requires resolution is whether the diversion of greywater to absorption areas on the premises in breach of the Local Government Act 1993 is a circumstance that ought to be restrained by final order. The operation of the diversion system for the southern building as observed by Mr Spring and Ms Currie on 15 June 2005 is significant for that resolution. In expressing his opinions, Mr Alderson does not appear to have given weight (or sufficient weight) to: - (i) the surcharging of greywater into the shower tray and the risks associated with such an occurrence, and (ii) the appropriateness of a system which discharges greywater into the ground in such close proximity to Emigrant Creek. I consider these circumstances to be significant to the resolution of the issues in this mater. Improper purpose of the Council? 126 The respondents contend that the Council was motivated by an extraneous or improper purpose in serving the s 124 order and in its related dealings with the respondents. Mr Jacobson identified that purpose variously as a "planning" purpose or as to stymie or undermine the respondents' development plans for the premises. He relied in this regard upon: - (i) the presence of Ms Hing, a planner, at one of the inspections, (ii) various Council internal emails and notes annexed to his affidavit which referred to the use of the premises (for example, people living on boats in dry dock at the premises), (iii) correspondence from the Council to the respondents about alleged unauthorised uses, and (iv) the conduct of Mr Spring (which I have dealt with above). Mr Jacobson submitted that the Council was initially involved at the instigation of the Crown Lands Department (with which he had been in dispute) and that the Council's concerns had been planning concerns, which the Council had not been able to substantiate. Hence, Mr Jacobson submitted that the sewage and drainage issue was a pretext for the Council to achieve its planning objectives for the premises. 127 I do not accept those submissions. 128 First, there is no evidence from which I am prepared to draw any inference that the Council, in its dealings with the respondents about the sewage and drainage arrangements at the premises, was doing anything other than fulfilling one of its most important functions as a local government authority. The fact that the Council may have held concerns about unauthorised uses at one time, and did not pursue those concerns (if that be the case), did not restrict or limit the other functions of the Council, including those with respect to drainage and sewage, under the Local Government Act 1993. 129 Secondly, based on the evidence of Mr Spring, Ms Currie and Mr Plumb, which evidence I accept, I am satisfied that the Council had every reason to be concerned about the sewage and drainage arrangements at the premises. Those arrangements were in breach of the requirements of the Local Government Act 1993, being requirements fundamental to ensuring the health of users of the premises, of people using the road reserve and the quality of water in Emigrant Creek. 130 Thirdly, I do not consider planning considerations to be extraneous to concerns about adequacy of drainage and sewage. In his evidence, for example, Mr Alderson expressed the opinion that the adequacy of tank sizes is related to the number of people using a facility and the nature of that use. That opinion accords with common sense. The development capacity of land may well depend, in part, upon the capacity to deal with wastewater. The adequacy of arrangements with respect to wastewater is a planning issue. 131 It follows that I reject the respondents' contention that the Council served the s 124 order or otherwise took the steps that it has taken in its dealings with the respondents for an improper purpose. Section 124 order 132 I am satisfied that the wastewater from the (various) showers, laundry tubs and sinks in the southern and northern buildings which I have described above discharged to absorption areas/pits in the ground in close proximity to Emigrant Creek in an area of high water table and that these arrangements were unsatisfactory due to: - (i) the risk of pollutants escaping to Emigrant Creek (both generally and, for the northern building, via the tidal drain located close to the absorption pits), (ii) the potential for people to come into contact with untreated greywater on the premises (by surcharging of greywater back into the shower tub in the southern building ) and on the road reserve, (iii) the risk of untreated greywater surcharging back into the shower in the southern building, (iv) the risk of odour from the management of the greywater. These arrangements were also unsatisfactory in that they comprised the operation of a system of sewage management absent approval for that operation as required by the Table to s 68 Part F, item 10, and clause 45 of the Local Government (Approvals) Regulation 1999 (prior to the repeal of that clause) and then by s 68A of the Local Government Act 1993 (a provision to the same effect as clause 45, but contained in that Act rather than the Regulation). 133 I am also satisfied that the installation of the ship's head toilet and its connection to the mains water and a single elevated tank was not a satisfactory manner to deal with human waste generated at the premises, in that the toilet did not comply with the Local Government (Approvals) Regulation 1999 (and thus could not have been approved) and the tank was not accredited under that Regulation (and thus also did not comply with the Regulation). 134 Consequently, I find that prior to service of the s 124 order, and until steps were taken by the respondents to disconnect the facilities in the southern and northern buildings from draining to the respective absorption areas for those buildings, waste was present and generated on the premises and was not being dealt with satisfactorily (and was not regulated or controlled by, or subject to, a licence or notice granted or issued under the Protection of the Environment Operations Act 1997 – a fact which the respondents did not dispute). I consider that the Council was justified in serving the order under s 124 on 21 October 2004 and that the circumstances enabling that order to be served were satisfied. Failure to comply with the s 124 order 135 It is apparent from the observations made by Mr Spring and Ms Currie on 15 June 2005 that the respondents had not, at that time, complied with (or, at the least, fully complied with) the s 124 order. The order required, amongst other things, that all of the domestic wastewater be diverted from the absorption pit to the holding tank. That had not occurred. The failure to comply with the s 124 order was a breach of the Local Government Act 1993 (s 67(b)(ii)). The 2005 works 136 I accept the evidence of Mr Jacobson that the respondents ceased to use the premises after the interlocutory orders were made on 25 August 2005 (although the date of this cessation is not clear to me) and otherwise disconnected various of the plumbing items or redirected them to the holding tanks prior to the cessation of use. This is consistent with the observations of Mr Spring in his affidavit sworn 1 November 2005. 137 I am satisfied that Mr Spring was entitled to hold the opinion that he could not satisfy himself that the respondents had complied with the interlocutory orders merely by looking at the exterior of the buildings and through the windows. Mr Spring said that inspecting "stackwork" (vertical plumbing such as on the outside of buildings) was insufficient to ascertain compliance and that he also had to inspect the "aerial" plumbing (that is, suspended from the bottom of bearers or joists beneath the floors) for that purpose. I accept that evidence. 138 I also accept the evidence of Mr Spring to the effect that relatively little work would be involved in reconnecting various facilities to the absorption pits which I infer remain present at the premises (and on the road reserve in part). Mr Alderson gave evidence to the same effect. This fact is relevant to my exercise of discretion with respect to the making of final orders. Mr Alderson's evidence generally 139 I admitted into evidence (over objection by the Council on various grounds) a report of Mr Alderson, consulting engineer, dated 8 July 2005. I noted above that I accepted Mr Alderson's expertise as a civil engineer with substantial experience in local government and wastewater management. The Alderson report had not been filed and served as required, but it had been made available to the Council as an annexure to Mr Jacobson's 8 September 2005 affidavit. Mr Alderson had not prepared the report for the purpose of these proceedings and thus had not acknowledged and agreed to be bound by the Court's Expert Witness Practice Direction and Code of Conduct. Mr Alderson, however, was familiar with the terms of the Expert Witness Practice Direction and Code of Conduct, although he did not have its requirements in mind when he prepared the report (understandably, as the report was not intended to be used for litigation). He said that the substance of his report would not have altered had he prepared it with the Court's Expert Witness Practice Direction and Code of Conduct in mind (although its form may have altered). Further, he was prepared to give oral evidence in accordance with his obligations as an expert. 140 In all of the circumstances, I was satisfied that the absence of the acknowledgment and agreement to be bound in Mr Alderson's report was not fatal to its admission into evidence in that Mr Alderson's report, having regard to the issues in dispute, was not likely to mislead or otherwise cause unfair prejudice to the Council (see, the Court's Expert Witness Practice Direction at [4], and the decisions of Portal Software v Bodsworth [2005] NSWSC 1228, Barak v WTH Pty Ltd t/as Avis Australia [2002] NSWSC 649, Langbourne v State Rail Authority [2003] NSWSC 537, Jermen v Shell Co Australia Limited [2003] NSWSC 1106, United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870 distinguishing Commonwealth Development Bank of Australia Pty Ltd Another v Cassegrain [2002] NSWSC 980). 141 I concluded that the Council's objection based on Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, having regard to the content of the Alderson report, did not render the report inadmissible. The evidence Mr Alderson gave of his qualifications and experience also met the Council's objection to his expertise. I dealt with the Council's objection to many of the (lengthy) annexures to the Alderson report by orders limiting the use of certain of the annexures (in particular, statutory declarations and a file note of Mr Jacobson about the opinions of a Mr Trout) and by admission subject to relevance. In addition to his report, Mr Alderson gave oral evidence in the proceedings. 142 Although I admitted Mr Alderson's report, in the result, I consider the report to be of little evidentiary value to the resolution of the real issues in this matter. Much of the report can only be understood as instructions from the respondents to Mr Alderson about the reason the respondents carried out the 2002 works. Parts are interpretations of Council documents that speak for themselves. Other parts are an interpretation of consents and approvals (or the legislation) that are not matters appropriate for expert opinion. Where expert opinions are expressed, they are in the form of conclusions with little reasoning in support. The report, moreover, does not deal with the adequacy or suitability (or not) of the actual operation of the wastewater systems on the premises, but focuses instead on the alleged inadequacies in the Council having proved inadequacy or unsuitability. For these reasons, where there is disagreement between Mr Plumb and Mr Spring (on the one hand) and Mr Alderson in his report (on the other) about a matter appropriate for expert opinion, I prefer the opinions of Mr Plumb and Mr Spring to those found in the Alderson report. 143 It should be apparent that, insofar as the Alderson report is to the effect that the drainage and sewage arrangements on the premises accord with condition 6 of the 23 November 1995 consent, I do not accept Mr Alderson's opinion (I have addressed condition 6 in detail above). I also do not accept the opinions expressed by Mr Alderson that the terms of the development application authorised the sewage and drainage arrangements on the premises. In cross-examination, Mr Alderson withdrew his statement that the Council had approved the absorption pits servicing both the southern and northern buildings. He also agreed that it was a basic requirement that any on site absorption trenches or pits be located within the premises and not on the road reserve. 144 As such, I do not accept Mr Alderson's primary relevant conclusions in that report – namely: A. The pumpout facilities at 14 and 22 Smith Street Ballina are Council Approved as part of the Development Consents for the Land use. Both comply with the Principles of Greywater Reuse forwarded to the land owners by Ballina Shire Council. Both the absorption fields only receive Greywater from showers and hand basins and are GDD as per the Principles of Greywater Reuse. B. There is no data from Council as to the pollution of the environment from the Systems from the subject land uses on the site. 145 Mr Plumb also gave evidence to the contrary of both these conclusions. I accept Mr Plumb's evidence in this regard which accords with the conclusions I have reached above (for other reasons). 146 Insofar as it is relevant, I do not accept Mr Alderson's observation in para C of his conclusion that the absorption field on the road reserve was included within the s 317A certificate issued by the Council on 5 September 1986. The encroachments on the road reserve are referred to at the foot of the certificate, but the certificate makes plain that it does not cover encroachments on the road reserve. 147 I found Mr Alderson's oral evidence of greater assistance than his report. Mr Alderson agreed that: - (i) the greywater policy did not apply to the premises, (ii) the policy did not require the respondents to carry out the works they had carried out, (iii) the ship's head toilet in the northern building did not meet the requirements of the Plumbing and Drainage Code of Practice, (iv) the sewage and drainage arrangements for the northern building were not those approved by the Council on 2 January 1996, (v) septic tanks had to comply with applicable Australian Standards, and that the tank to the northern building was required to be accredited, (vi) the tank for the northern building was not accredited (but he thought it was capable of being accredited). 148 Mr Alderson said that the appropriateness of the arrangements for sewage management would vary depending on the number of people using the facilities. He considered that two tanks of about 2050 litres capacity each would be "barely adequate" for ordinary domestic use by a single family (but at the lower end of the size which might be acceptable), and that he would recommend a higher capacity if there were more users (as an indication of the sensitivity of this criterion, Mr Alderson expressed the opinion that two tanks of 2050 litres each would be insufficient for use by 5 people in ordinary domestic circumstances). He agreed that the size of the elevated tank to the northern building (of about 1100 to 1200 litres) may or may not be adequate depending on the number of users. He agreed that while he thought that tank could be adequately sized to deal with a couple of people using it during normal business hours, that opinion would change if the use were different. He agreed that the caretaker's flat in the southern building, under the Building Code of Australia, required cooking and laundry facilities (wastewater from which, I infer, might be of a lesser quality than certain other classes of wastewater). I accept that evidence. 149 Mr Alderson also said that the premises were within 100 metres of Emigrant Creek, within an area of high water table and that, in his opinion, whether or not all wastewater ought to be pumped into the tanks depended on the quality of the wastewater. With respect to the northern building, Mr Alderson agreed that he was aware of chemicals being used in that building and that these chemicals could easily escape from the sink into the absorption pit. He agreed that such a situation was not ideal. 150 Mr Alderson agreed that the disconnected services could be brought back into use with some works carried out to them. This is relevant to the question of the appropriateness of the making of final orders, which I address below. 151 I consider particularly relevant the question and answer relating to the use of absorption pits (or, as Mr Alderson prefers, sub-surface irrigation) in high water table areas, as follows: Q. You'd also agree with me, would you not, that in respect of the subject premises the high water table would be a reason why such a thing ought not to be approved? A. No I wouldn't agree with that necessarily. We've got to be a little bit careful here in that we're talking different timeframes and our awareness of the consequences of some of these things has changed so absorption pits, trenches, whichever is the appropriate name for what's there at the moment, would have been approved by council in high watertable areas up until probably as late as say 10 years or even five years ago. It's only been in recent times that council's consultants and the whole industry has recognised that high watertable requires a higher form of treatment. It's not the disposal that's the problem, it's the level of treatment. 152 I consider this evidence significant because I infer from all of the evidence that the "greywater" which was being discharged to the absorption pits from both buildings on the premises was untreated. In this context, it is also material that Mr Alderson agreed that the premises were located in an "environmentally sensitive area" as referred to in the Local Government (Approvals) Regulation 1999. 153 In summary, I consider that Mr Alderson's evidence, at its highest, is to the effect that the facilities (other than the ship's head toilet) might or might not have been capable of approval and functioning adequately depending upon: - (i) the quality of the wastewater produced from the buildings (which I infer was untreated wastewater and about which no information is available other than the generalisations in the greywater policy which suggest that greywater may contain significant levels of contaminants harmful to human health depending on the source of the greywater), and (ii) the number of people using the buildings (about which the evidence is also far from clear save to say that I have accepted that there is a real potential for use to have occurred exceeding the levels anticipated by Mr Alderson as within the capacity of the systems for both buildings). Further, that over the last 5 to 10 years or so, a much greater focus on greywater quality has taken place, particularly in high water table areas. 154 I consider that the evidence of Mr Alderson which I accept discloses the serious inadequacies and potential significant environmental and health risks consequent upon: - (i) the sewerage works carried out by the respondents, (ii) the operation of those works (caused by the respondents) as a system of sewage management, and (iii) the respondents' failure to comply with the s 124 order in accordance with its terms and in a timely manner. Mr Jacobson's contentions on the management of wastewater on the premises 155 Mr Jacobson held the opinion and submitted that the facilities at the premises were far superior to the requirements of the legislation, and would meet or exceed standards applicable on the waterway which were more stringent than those applying to land. Insofar as these opinions could be relevant, I do not accept them for the reasons I have given above. They are inconsistent with the opinions of Mr Spring and Mr Plumb, whose evidence I accept. 156 I find that the management of wastewater at the premises, prior to the cessation of use of the premises, was highly unsatisfactory and gave rise to a potential for serious harm to both people and the environment for the three reasons identified by Mr Plumb. As noted above, I refused to admit as to the truth of its contents a note dated 16 June 2004 and written by Mr Jacobson recording what were said to be opinions of a Mr Trout (apparently, a plumber or wastewater engineer) to the effect that the wastewater management facilities on the premises were "acceptable and not failed". Had I admitted that evidence as representing Mr Trout's opinion, I would not have accepted that evidence for the same reasons that I do not accept Mr Jacobson's opinions and submissions. Conclusions 157 For the reasons I have given, I am satisfied that the respondents carried out "sewerage works" within the meaning of s 68 without approval, operated a system of sewage management (within the meaning of s 68 (Part F of the Table, item 10) and clause 45 or s 68A) without approval, and failed to comply with an order given under s 124, all in breach of the Local Government Act 1993. 158 Section 676(1) of the Local Government Act 1993 provides that the Court may make such order as it thinks fit to remedy or restrain a breach of the Act. The terms of this section are similar to s 124(1) of the Environmental Planning and Assessment Act 1979, which vests a wide discretion in the Court (Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339). 159 I consider that, although the premises are not presently used (due to the terms of the interlocutory orders made by this Court), there continue to be threatened breaches of the Local Government Act 1993. The facilities at the premises can readily be reconnected and again used in the same manner as they were used prior to the interlocutory orders. I consider that it is relevant to the question of threatened breach that: - (i) the respondents diverted the untreated wastewater from the buildings (except from toilets) to sub-surface absorption areas/pits in a high water table area and adjacent to Emigrant Creek, absent any approval from the Council or apparent appreciation of the potential risks to human health and the environment associated with that action, (ii) the respondents installed the ship's head toilet and the northern holding tank, and associated pipework and connections, when both facilities were unable to be approved under the Local Government Act 1993, (iii) the respondents sought to defend these proceedings on grounds (for example, that the wastewater management arrangements at the premises far exceeded the statutory requirements) which I consider demonstrate serious misconceptions, not only about the requirements of the legislation, but also about the potential risks to human health and the environment associated with the discharge of untreated wastewater in the circumstances of this matter. 160 There is no evidence from which I can infer that there would have been any practical difficulty in the respondents complying with the substance of the s 124 order. Indeed, Mr Spring said that the total cost of compliance with that order would have been in the order of $6000. Whether or not that figure is accurate, I accept that it indicates that the likely costs of compliance with the s 124 order, and the legislation, are not prohibitive. I have rejected the reason given by Mr Jacobson for the respondents not complying with the s 124 order in accordance with its terms and time requirements. Equally, I can see no practical difficulty which would preclude or make it inappropriate for the respondents to carry out the works which I require in the orders I propose to make. 161 The premises (although they contain a caretaker's flat) are in an industrial zone. The uses of the premises ceased some time ago, pursuant to the Court's interlocutory orders because the respondents considered the benefits from use to be outweighed by the burdens of the daily pump out requirement contained in those orders. The respondents have not pointed to any particular hardship which would be caused by continuing the restraint on use of the premises, unless and until certain works are carried out to ensure that adequate wastewater management arrangements are in place (although I accept that there is hardship, financial and otherwise, likely to be inherent in an order restraining use). I consider that the potential risks to human health and the environment (if the use of the premises re-commenced absent the necessary rectification works) substantially outweigh any such hardship. 162 Accordingly, I am satisfied that the discretionary factors in this matter are overwhelmingly in favour of the making of final orders against the respondents. The Council brings proceedings to enforce some of the most basic public health requirements of the Local Government Act 1993. Compliance with these laws is of central importance to civilised society, the maintenance of public health and the protection of the environment. 163 In summary, use of the existing sewage management facilities on the premises would place at significant risk the health of those using the facilities, the road reserve and Emigrant Creek, as well as the ecosystem of Emigrant Creek and persons using that and connected waterways for recreational and oyster growing purposes. These risks are serious and unacceptable. Orders should be made to ensure that the threatened breaches of the Local Government Act 1993 are restrained and, insofar as possible, that the consequences of the breaches which have occurred,are rectified. Orders 164 I consider that orders to the effect set out in annexure "A" should be made. I propose to give the parties leave to be heard on the form of those orders (including any further details that should be specified in order (2)) and the time periods for compliance contained therein. As the effect of the orders will be to require certain plumbing works to be carried out (if the use of the premises is to re-commence for any purpose), it is appropriate that the works comply with the currently applicable requirements of the Local Government Act 1993 and the Local Government (General) Regulation 2005. Alternatively, the orders permit use of the premises if the respondents obtain approvals under s 68 and s 68A of the Local Government Act 1993. **************************** ANNEXURE "A" PROPOSED ORDERS 1 The respondents, and each of them, are forthwith restrained from using, or causing or permitting to be used, the land known as No's 14 – 22 Smith Drive, West Ballina, being lot 1 DP 605260 (the "premises"), and the buildings upon those premises, for any purpose: (a) unless and until the works specified in orders (2), (3), (4), (7), (9), (10), (11) and (14), and the requirements of orders (5) and (12), are carried out and completed; and (b) other than in circumstances where all wastewater from the buildings is directed at all times in accordance with the requirements of orders (6), (8), (13) and (15) below, or where all wastewater from the buildings: (c) is otherwise managed in accordance with the requirements of approvals granted in accordance with s 68 and s 68A of the Local Government Act 1993 (or any replacement or amendment of those sections). Southern building 2 (a) Within 28 days of the date of these orders, the respondents shall sanitise and deodorise the area of the Smith Drive road reservation that has been impacted by the discharge of wastewater from the southern building by treating that area with fine agricultural lime [further details to be provided]. (b) The respondents shall give to the applicant at least 7 days' notice in writing of the commencement of these works and must notify the applicant within 48 hours of the completion of the works. (c) The respondents must ensure that these works, at all times, are carried out under the supervision of a qualified civil engineer with experience in the management of wastewater. 3 Prior to discharging any wastewater from the southern building into the existing southern holding tanks, the respondents shall disconnect all pipework used or capable of being used to convey wastewater from the southern building to the southern absorption areas. 4 Prior to discharging any wastewater from the southern building into the existing southern holding tanks, the respondents shall install an audible and visual alarm to the southern holding well which must be set to trigger when the holding well reaches 75% capacity or when 3 days flow capacity remains in the existing southern holding tanks. 5 Prior to discharging any wastewater from the southern building into the existing southern holding tanks, the respondents shall submit to the applicant a copy of the contract entered into by or on behalf of the respondents for the pumping out of the existing southern holding tanks. 6 The respondents shall ensure that any discharge of wastewater from the southern building is directed into the existing southern holding tanks. 7 The respondents shall ensure that all works carried out pursuant to orders (3), (4) and (6) above, and all works (and, where relevant, fixtures) ancillary thereto: (a) are carried out by a person who holds a permit issued in accordance with the Plumbing and Drainage Code of Practice (as defined in the Local Government (General) Regulation 2005); and (b) comply with all requirements of the Local Government (General) Regulation 2005) being requirements which would apply to such works, if such works had been the subject of an approval under s 68 and/or 68A of the Local Government Act 1993. 8 The respondents shall ensure that the discharge of any wastewater from the southern building into the existing southern holding tanks is carried out in accordance with all requirements of the Local Government (General) Regulation 2005 being requirements which would apply to that activity, if that activity had been the subject of an approval under ss 68 and/or 68A of the Local Government Act 1993. Northern building 9 The respondents shall ensure that a tank and holding well of not less than 2050 litres capacity each is installed to service the northern building. In these orders, these tanks are referred to as the northern holding tanks. 10 Prior to discharging any wastewater from the northern building into the northern holding tanks, the respondents shall disconnect all pipework used or capable of being used to convey wastewater from the northern building to the northern absorption areas. 11 Prior to discharging any wastewater from the northern building into the northern holding tanks, the respondents shall install an audible and visual alarm to the northern holding well which must be set to trigger when the holding well reaches 75% capacity or when 3 days flow capacity remains in the northern holding tanks. 12 Prior to discharging any wastewater from the southern building into the northern holding tanks, the respondents shall submit to the applicant a copy of the contract entered into by or on behalf of the respondents for the pumping out of the northern holding tanks. 13 The respondents shall ensure that any discharge of wastewater from the northern building is directed into the northern holding tanks. 14 The respondents shall ensure that all works carried out pursuant to orders (9), (10), (11) and (13) above, and all works (and, where relevant, fixtures) ancillary thereto: (a) are carried out by a person who holds a permit issued in accordance with the Plumbing and Drainage Code of Practice (as defined in the Local Government (General) Regulation 2005); and (b) comply with all requirements of the Local Government (General) Regulation 2005) being requirements which would apply to such works, if such works had been the subject of an approval under s 68 and/or 68A of the Local Government Act 1993. 15 The respondents shall ensure that the discharge of any wastewater from the northern building into the northern holding tanks is carried out in accordance with all requirements of the Local Government (General) Regulation 2005 being requirements which would apply to that activity, if that activity had been the subject of an approval under ss 68 and/or 68A of the Local Government Act 1993. 16 All exhibits are returned to the parties. 17 The interlocutory orders made by the Court on 25 August 2005 are dissolved. 18 Costs are reserved. In these Orders: northern absorption areas means the sub-surface irrigation areas or absorption pits servicing the northern building on the premises. northern building means the building located at the northern end of the premises. northern holding tanks means the tanks required to be installed pursuant to these orders to service the northern building. northern holding well means that part of the northern holding tanks which functions as the collection well. southern absorption areas means the sub-surface irrigation areas or absorption pits servicing the southern building on the premises. southern building means the building located at the southern end of the premises. existing southern holding tanks means the two concrete tanks present on the premises which are available to service the southern building. southern holding well means that part of the existing southern holding tanks which functions as the collection well. wastewater means discharges from fixtures (including toilets, urinals, showers, baths, kitchen sinks, tubs and basins, laundry sinks, tubs and basins and other sinks, tubs and basins). 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