Land and Environment Court of New South Wales CITATION : Owners Strata Plan 10897 v Woollahra Municipal Council [2004] NSWLEC 5 APPLICANT Owners Strata Plan 10897 PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 11202 of 2003 CORAM: Hussey C KEY ISSUES: Waste Disposal :- Issue of Direction for preventative action - reasonableness LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Protection of Environmental Operations Act 1997 CASES CITED: DATES OF HEARING: 19 January 2004 EX TEMPORE 01/19/2004 JUDGMENT DATE : APPLICANT Mr J Davies (Representative Strata Body) LEGAL REPRESENTATIVES: RESPONDENT Mr M Connell , solicitor SOLICITORS Michell Sillar JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11202 of 2003 Hussey C 19 January 2004 Owners Strata Plan 10897 Applicant v Woollahra Municipal Council Respondent Judgment 1 . This appeal is against council's issue of a s 96(1) Direction to take preventative action to rectify unauthorised effluet discharge from a private sewer line discharging into Cooper Street, Paddington. 2 . I understand from the various statements that the discharge problem was evident for some time, with a number of complaints regarding odour being made by various residents. 3 . Mr Lee from council checked the origin of the discharge by placing dye in the sewerage system that confirmed the source of the pollution was the flats at No. 190 Glenmore Road. This resulted in the issue of the s 96 Direction to take preventative action. As the pollution source was traced to the subject property, I consider it was reasonable on the basis of the known information to issue the Direction to rectify the pollution, in order to protect the public interest. 4 . The appeal process allows for an appeal top be lodged within 21 days. However, in this case the work has been completed in the interim period by the Body Corporate at some considerable cost. On an appeal the Court has the discretion to decide whether it is reasonable that the Direction be issued, or further matters such as the basis and time on which the work is to be completed. That option has not been followed in this case, because the work has been completed. 5 . In undertaking the rectification works then, it has been found by the applicant's licensed plumber that there is a failure of the underlying stormwater pipe which is likely to have contributed to the damage to the sewer because of a reduction in bearing capacity. That being the case, it appears there could be a case for separate action, regarding appropriation of costs. 6 . Furthermore, there is an issue to ensure that the stormwater line is adequately cleaned and repaired so that it will not cause future damage to the private sewer line. However in the ultimate, I consider that there was at the time, reasonable evidence to justify the issue of the Direction to rectify the sewer discharge/pollution. 7 . Accordingly the Court order is that the appeal is dismissed. ___________ R Hussey Commissioner of the Court rjs DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.