Land and Environment Court New South Wales Medium Neutral Citation: Hall v Marrickville Council [2013] NSWLEC 1235 Hearing dates: 7 November 2013 Decision date: 07 November 2013 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is dismissed. 2. Prevention notice (Item 1) issued by Marrickville Council on 2 July 2013 pursuant to s 96 of the Protection of the Environment Operations Act 1979 for the property at 31 Searl Street Petersham is confirmed but with the timeframe in column 3 varied to read "Within 48 hours from the date of the orders of the Court" 3. Clean up notice (Item 2) issued by Marrickville Council on 2 July 2013 pursuant to s 91 of the Protection of the Environment Operations Act 1979 for the property at 31 Searl Street Petersham is confirmed but with the timeframe in column 3 varied to read "Within 48 hours from the date of the orders of the Court". 4. The exhibits are retained. Catchwords: APPEAL: Prevention notice and Clean up direction - sewage being discharged from the property as a result of a malfunction of the sewerage system - whether notices justified Legislation Cited: Protection of the Environment Operations Act 1979 Category: Principal judgment Parties: Sarah June Hall (Applicant) Marrickville Council (Respondent) Representation: Litigant in person (Applicant) Ms J Blunden, solicitor (Respondent) - (Applicant) Marrickville Council (Respondent) File Number(s): 10582 of 2013 Judgment 1COMMISSIONER: This is an appeal against a Prevention notice and Clean up notice (the Notices) issued by Marrickville on 2 July 2013 pursuant to s 96 and s 91, respectively under the Protection of the Environment Operations Act 1979 (the Act) for the property at 31 Searl Street Petersham (the site). 2The Notices (Items 1 and 2) relevantly states: Premises: 31 Searl Street Petersham Background On Monday the 1st July 2013 a Council Officer observed sewage surcharging from the sewer gully on the western side of the subject premise. The sewage was flowing from the sewer gully down the western side of the property onto the neighbouring property and onto the footpath. The Officer experienced a strong and offensive odour emanating from the property and observed toilet paper and faeces on the property in the vicinity of the sewer gully. The sewage was seen to be flowing down the side of the property contaminating the footpath and verge in front of properties located at numbers 33, 35, 37 and 39 Searl Street, then flowing into the storm water system. Marrickville Council reasonably believes that sewage is being discharged from the property as a result of a malfunction of the sewerage system on the property. This sewage has created a pollution incident by entering the storm water system. Direction to take preventive action Marrickville Council directs Sarah Hall (property owner) to take the following action: Item Action required Timeframe 1. Engage a licensed plumber to investigate and repair the faulty sewerage system. Immediately 2. Any spillage of sewage onto public land, must be cleaned immediately, in an environmentally satisfactory manner. Immediately The sewer service 3The sewer to which the applicant's property is connected is a joint private sewer servicing three other properties to the east of the applicant's property. The joint private sewer drains to Sydney Water's main sewer in Searl St via the applicant's property along the western boundary on which a sewer gully is located approximately 5m from the rear corner of the house. The four properties connected to the joint private sewer are 25, 27, 29 and 31 Searl Street. All properties have dwelling houses and are occupied with the exception of the dwelling on the site. The councils basis for the Notices 4Expert evidence from the council was provided by Mr Terry Cocks, a Compliance Officer with the council. His evidence provides a chronology of events and actions he has undertaken in the investigations that led to the Notices being issued by the council on 2 July 2013. A summary of these events and actions are: 1 July 2013 - complaint related to sewage surcharging from the site into 33 Searl Street (the adjoining property) and then onto the public footpath. 1 July 2013 - site inspected and observations made of sewage, consisting of liquid, white pieces of paper and faecal matter surcharging from the sewer gully on the site. After exiting the sewer gully, the sewage flowed along the concrete footpath on the site for approximately 4 m. Mr Cocks observed lumps of toilet paper and faecal matter along the concrete footpath on the site for approximately 4 m and against the paling fence on the western boundary. There was a strong and offensive odour emanating from the area near the sewer gully. The sewage then entered the adjoining property and the flow continued along the footpath of this property and then onto the public footpath. Mr Cocks observed faecal matter on the verge of the public footpath, opposite 33 Searl Street. The sewage then flowed down the public footpath past 33,35,37 and 39 Searl Street into the gutter, which then flows into the storm water system that eventually flows into Iron Cove. 9 July 2013 - Mr Cocks attended the site and observed sewage discharging from the sewer gully and smelt an offensive odour emanating from outside the site. 22 July 2013 - Mr Cocks attended the site and observed the sewer gully on the site was surcharging sewage that remained within the site. 11 July 2013 - Mr Cocks contacted Sydney Water to request a check of the sewer mains located immediately outside the site and on 12 July 2013 a person who identified himself as John from Sydney Water advised Mr Cocks by telephone and to the effect that "the sewer blockage is on private property and the sewer mains are clear". 3 October 2013 (7.27 am) - Mr Cocks received a complaint from the adjoining property that the sewer was surcharging and flowing onto the public footpath. On arriving at the site Mr Cocks observed fluid flowing from the sewer gully along the concrete footpath on the site for approximately 4 m. There was a very strong and offensive odour emanating from the area near the sewer gully. The fluid then entered the adjoining property and the flow continued along the footpath of the adjoining property and then onto the public footpath. The fluid then flowed down the public footpath past 33, 35,37 and 39 Searl Street and into the gutter, which then flows into the storm water system that eventually flows into Iron Cove. 3 October 2103 (8.10 am) - Mr Cocks attended 29 Searl Street and spoke to the occupant who gave permission to undertake dye testing from the premises. Mr Cocks placed one red dye test strip into the toilet bowl and flushed the toilet twice and also placed another red dye test strip down the bath drainage hole and ran water down the bath drainage hole for approximately 3 minutes. At 9.30am Mr Cocks returned to the site and observed the flow of fluid from the sewer gully had stopped. At approximately 9.50am Mr Cocks observed red fluid surcharging from the sewer gully at the site. The red fluid flowed along the concrete footpath for approximately 4 m before entering the adjoining property. The red fluid continued to flow along the footpath of 33, 35,37 and 39 Searl Street and then into the gutter, which then flows into the storm water system. 5Mr Cocks concludes that based on his investigation on 1 July 2013, observations on 3 October 2013 from the dye testing and information provided by Sydney Water that its sewer main was clear a pollution, a "pollution incident" as defined in the Act occurred on 1 July 2013 and 3 October 2013 as a result of a faulty sewerage system at the site. Unless the faulty sewerage system at the site is repaired further pollution incidents are likely to occur. The applicant's response to the Notices 6The applicant contends that the event, which resulted in the issuing of the Notices on 2 July 2013 was not appropriate as the sewage discharge did not constitute a pollution incident as envisaged under the Act. 7The applicant contends that any water observed flowing from her property and entering the stormwater drainage system in Searl Street on 1 July 2013 was surface ran-off of stormwater discharging from elements of a defective stormwater system installed at the rear and western side of the building with concentrated flows following the slope of the side path where the overflow gully is located, crossing to the neighbour's property and flowing onto the street. The amount of debris in the form of leaves and twigs swept up in the flow and left deposited on the path in its wake is consistent with the action of a concentrated flow of a high volume of water. 8The volume of water involved in the event is not consistent with the volume of wastewater likely to be discharged into the sewer by the occupants of the houses connected to it given the small size of the households. Neither is the rate of flow consistent with a surcharge of wastewater from a private sewer servicing three households with six occupants. 9The applicant further contends that the faecal matter and toilet paper deposited on the path which has been taken to be evidence of a sewer surcharge is not consistent with sanitary waste which has been flushed down a toilet and dissolved in waste water and conveyed in solution along a sewer pipe over a distance spanning 20 to 33m. It does not have the appearance of the sewage that surcharged onto the side path in 2012. 10The applicant contends that the vast quantity of matter deposited on the path in the vicinity of the gully and covering it is not commensurate with the quantity of sanitary waste likely to be discharged into the sewer by three households with six occupants. The applicant contends that the sheer quantity of matter deposited over the mouth of the gully would prevent a surcharge of anything but a thin flow of water given that the mouth of the gully appears to be completely blocked by the matter piled on top of it. 11The applicant contends that the extravagant lumps of matter piled over the gully and deposited on the path immediately around it have been fabricated from sheets of paper rolled up into balls. The pages apparently were originally coloured since photographs appear to show dye leaching out after rain and flowing onto the surrounding surfaces. 12Council's photograph of the flows onto the footpath from the neighbour's path on 1 July 2013 show the footpath stained deep blue. The applicant has photographs taken over several days following the recent downpour on 16 September 2013 which show a blue-green stain spread over the matter deposited around the gully on the path and on the neighbour's path. Photographs show that vegetation along a section of the dividing fence on the applicant's property has been removed and the ground under the fence undermined at that point with the result that water flowing down the path on the applicant's property is diverted into the neighbour's property. 13The applicant contends that the depositing of lumps of paper and excrement on the path at a time of heavy rainfall to take advantage of the volume of the flows out of the properly onto the footpath is an attempt to simulate a sewer surcharge onto public land in order to get the council to take action against the owner of the property, the applicant, and remedy a situation that would otherwise be at the neighbour's expense in a civil action. 14Finally, the applicant acknowledges that the sanitary system on her property is defective but contends that any discharge is intermittent, minimal and confined to her property, that occasional flows into the neighbouring property are carried there by stormwater associated with rainy periods. Findings 15Section 292 of the Act states: 292 Determination of appeals (1) A court to which an appeal is made under this Act may hear and determine the appeal. (2) The decision of the court on an appeal under this Act is final and binding on the appellant and the person or body whose decision or notice is the subject of the appeal. 16I am satisfied that the council is the appropriate regulatory authority for the Notices, pursuant to s 6 and that the applicant is the "occupier" for the purposes of issuing the Notices. 17In relation to the Preventive notice, s 96 relevantly states: 96 Preventive action (1) Application of section This section applies when the appropriate regulatory authority reasonably suspects that an activity has been or is being carried on in an environmentally unsatisfactory manner at any premises or by any person (otherwise than at premises). (2) Prevention notices The appropriate regulatory authority may, by notice in writing, do either or both of the following: (a) direct the occupier of the premises, (b) direct the person carrying on the activity (whether or not at premises), to take such action, as is specified in the notice and within such period (if any) as is specified in the notice, to ensure that the activity is carried on in future in an environmentally satisfactory manner. (3) Examples The action to be taken may (without limitation) include any of the following: (a) installing, repairing, altering, replacing, maintaining or operating control equipment or other plant, (b) modifying, or carrying out any work on, plant, (c) ceasing to use plant or altering the way plant is used, (d) ceasing to carry on or not commencing to carry on an activity, (e) carrying on an activity in a particular manner, (f) carrying on an activity only during particular times, (g) monitoring, sampling or analysing any pollution or otherwise ascertaining the nature and extent of pollution or the risk of pollution, (h) action with respect to the transportation, collection, reception, re-use, recovery, recycling, processing, storage or disposal of any waste or other substance, (i) preparing and carrying out a plan of action to control, prevent or minimise pollution or waste, (j) reviewing the carrying out of an activity. (3A) Water pollution considerations The appropriate regulatory authority, when determining the action to be specified in a notice relating to an activity that causes, is likely to cause or has caused water pollution, must consider: (a) the environmental values of water affected by the activity, and (b) the practical measures that could be taken to restore or maintain those environmental values, and (c) if the appropriate regulatory authority is not the EPA-any guidelines issued by the EPA to the authority relating to the exercise of functions under this section. 18Section 95 states: 95 Meaning of environmentally unsatisfactory manner For the purposes of this Part an activity is carried on in an environmentally unsatisfactory manner if: (a) it is carried on in contravention of, or in a manner that is likely to lead to a contravention of, this Act, the regulations or a condition attached to an environment protection licence (including a condition of a surrender of a licence) or an exemption given under this Act or the regulations, or (b) it causes, or is likely to cause, a pollution incident, or (c) it is not carried on by such practicable means as may be necessary to prevent, control or minimise pollution, the emission of any noise or the generation of waste, or (d) it is not carried on in accordance with good environmental practice. 19In relation to the Clean-up notice, s 91 states: 91 Clean-up by occupiers or polluters (1) Notices The appropriate regulatory authority may, by notice in writing, do either or both of the following: (a) direct an occupier of premises at or from which the authority reasonably suspects that a pollution incident has occurred or is occurring, (b) direct a person who is reasonably suspected by the authority of causing or having caused a pollution incident, to take such clean-up action as is specified in the notice and within such period as is specified in the notice. Note. pollution incident and clean-up action are defined in the Dictionary. 20The Dictionary to the Act provides the following relevant definitions: clean-up action, in relation to a pollution incident, includes: (a) action to prevent, minimise, remove, disperse, destroy or mitigate any pollution resulting or likely to result from the incident, and (b) ascertaining the nature and extent of the pollution incident and of the actual or likely resulting pollution, and (c) preparing and carrying out a remedial plan of action. It also includes (without limitation) action to remove or store waste that has been disposed of on land unlawfully. pollution incident means an incident or set of circumstances during or as a consequence of which there is or is likely to be a leak, spill or other escape or deposit of a substance, as a result of which pollution has occurred, is occurring or is likely to occur. It includes an incident or set of circumstances in which a substance has been placed or disposed of on premises, but it does not include an incident or set of circumstances involving only the emission of any noise. 21In this case, I have little trouble in concluding that the Notices are appropriate. The discharge of sewage from the faulty sewerage system at the site falls clearly within the definition of a "pollution incident" and that the applicant should to directed to take clean-up action, given the flow of sewage onto the public area of Searl Street. 22In my view, the ability to issue a Prevention notice in s 96(1) is enlivened having found that the sewerage system on the site " is being carried on in an environmentally unsatisfactory manner". In my view, the existing sewerage system on the site falls with s 95(a), (b) (c) and (d). 23The evidence of Mr Cocks was not challenged in any meaningful way. His visual observations and detection of strong odours on 1 July 2013 and 3 October 2013, when combined with the comments from Sydney Water on the unencumbered condition of their sewerage main and importantly, the dye test on 3 October 2013, leave no other conclusion other than a faulty sewerage system exists on the site. 24The applicant accepts that the sewerage system is defective although she maintains that the Notices were not warranted as any discharge is intermittent, minimal and confined to her property and that occasional flows into the neighbouring property are carried there by stormwater associated with rainy periods. I reject this suggestion outright given the unchallenged evidence of Mr Cocks that sewage was observed discharging from the sewer gully on 1 July 2013 and 3 October 2013. 25The applicants further attempts to convince the Court that it was not sewage discharge because the origin of the paper on the side path was not toilet paper but "fabricated from sheets of paper rolled up into balls", the low degradation time of the paper compared to toilet paper, the colour of the discharged liquid, the high volume of sewage discharge based on the limited number of people connected to the private sewer and the likely cause of the liquid discharging to the street being only stormwater caused by a dislodged down pipe, are all speculative at best and not based on any evidence. Importantly, many of these assertions are totally inconsistent with the observations and reasonable conclusions of Mr Cocks. 26The fact that sewage flows occur over private land and then onto public land, under any circumstances, is unacceptable and is a valid basis to issue a Prevention notice under s 96 of the Act. The fact that sewage also leaves the site and can find its way into the councils stormwater that eventually flows into Iron Cove could raise other serious issues, specifically s 96(3A). 27In my view a period of 48 hours is appropriate to address the faulty sewerage system given the potential public health risks associated with raw sewage. 28Also, the need for Clean up notice under s 91(1) is a valid and necessary requirement given the evidence of Mr Cocks where sewage was observed on the public areas in Searl Street. Remnants of paper were observed on the footpath on the site inspection. The Clean-up notice is required "to ...remove, ... destroy ... any pollution resulting ... from the incident". In my view, a period of 48 hours to undertake the clean-up is appropriate given the potential public health risks associated with raw sewage. Orders 29The orders of the Court are: 1. The appeal is dismissed. 2. Prevention notice (Item 1) issued by Marrickville Council on 2 July 2013 pursuant to s 96 of the Protection of the Environment Operations Act 1979 for the property at 31 Searl Street Petersham is confirmed but with the timeframe in column 3 varied to read "Within 48 hours from the date of the orders of the Court" 3. Clean up notice (Item 2) issued by Marrickville Council on 2 July 2013 pursuant to s 91 of the Protection of the Environment Operations Act 1979 for the property at 31 Searl Street Petersham is confirmed but with the timeframe in column 3 varied to read "Within 48 hours from the date of the orders of the Court". 4. The exhibits are retained. ____________ G T Brown Commissioner of the Court 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. Decision last updated: 12 December 2013