Fennell v Gosford City Council [2011] NSWLEC 1314

Land and Environment Court New South Wales

Medium Neutral Citation: Fennell v Gosford City Council [2011] NSWLEC 1314 Hearing dates: 10 October 2011 Decision date: 03 November 2011 Jurisdiction: Class 2 Before: Fakes C Decision: Appeal dismissed; council orders amended Catchwords: Section 124 Order - taking of action to bring a domestic waste water management system up to current standards Legislation Cited: Local Government Act 1993 Threatened Species Conservation Act 1995 Category: Principal judgment Parties: Susan Fennell (Applicant) Gosford City Council (Respondent) Representation: Applicant: Mr A Fennell (agent) Respondent: Mr M Everingham (Solicitor) Gosford City Council File Number(s): 20532 of 2011

Judgment 1This is an appeal pursuant to s 180 of the Local Government Act 1993 (the LG Act) against an order made by Gosford City Council (the council) under s124 of the Act. The order (order 21) requires the applicant to take action to bring a domestic waste water management system located behind the cottage on Lot 431 DP847911 being 389 Avoca Drive Green Point (the site), up to current standards on the basis that the current system is not in a safe or healthy condition. 2The council contends that the septic tank effluent absorption pit on the site has failed allowing effluent to pond on the land surface. The order made by the council is as follows [as written]: (1)Install an on-site domestic wastewater management system in accordance with AS1547 On-site domestic wastewater management and the Environment and Health Guidelines On-Site Sewage Management for Single Households capable of handling all likely hydraulic loading generated by the existing residence. (2)A copy of an on-site wastewater disposal report prepared by a practising recognised Geo-technical Engineer or other suitably qualified, recognised professional experienced in the field of on-site domestic wastewater management is to be submitted to Council for assessment and advice prior to installation. (3)Selection and installation of the on-site wastewater management system is to be supervised and certified by the author of the wastewater disposal report. Inspection of the designed land application area by the author of the wastewater disposal report prior to backfilling is required to permit certification to be issued. (4)Commissioning Certificate from the on-site wastewater management system supplier is to be forwarded to Council prior to the system's operation and issue of an Approval to Operate. (5)Decommission the existing failed absorption trench and septic tank. In addition: (1) All work is to be carried out by a licensed plumber/drainer in accordance with Council requirements and the relevant codes of practice. (2) An inspection by Council is required for all completed works. 3The order was issued on 1 June 2011 and a period of 30 days from the date of service was nominated for compliance with the order. 4The applicant has appealed to the Court and seeks the following alternative orders [as written]. 1 That the Gosford City Council order under s. 124 of the Local Government Act 1993 dated 1 st June 2011 be revoked. 2 That the surcharge from the septic tank behind the cottage at 389 Avoca Drive, Green Point be piped to (a)the absorption trench behind the tank works at 389 Avoca Drive, Green Point or (b)an absorption trench 10 metres long to be constructed/installed by the applicant below the cottage septic tank, such order to be by way of an order under s. 124 of the Local Government Act 1993. 3 That the respondent pay the applicant's costs of and incidental to these proceedings.