Coppens v Waterwise Design Pty Ltd [2012] QCATA 129

CITATION: Coppens v Waterwise Design Pty Ltd [2012] QCATA 129 PARTIES: Josephine Coppens (Applicant/Appellant) v Waterwise Design Pty Ltd (Respondent) APPLICATION NUMBER: APL043-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Mr J Jerrard QC, Member DELIVERED ON: 22 June 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for leave to appeal is dismissed. CATCHWORDS: APPEAL – LEAVE TO APPEAL – ERROR OF LAW – MINOR DEBT CLAIM – COMPENSATION – where the applicant had engaged the respondent to design an on-site sewerage treatment facility – where the applicant had been the owner builder of a house constructed on the property – where the applicant sought compensation for losses that the applicant was alleged to have suffered following the installation of an on-site sewerage treatment facility – whether s 94 of the Plumbing and Drainage Act 2002 applies Plumbing and Drainage Act 2002, ss 92, 93, 94, Schedule 3 Queensland Civil and Administrative Tribunal Act 2009, s 32 Sewerage Code 2002, clause 11 APPEARANCES and REPRESENTATION (if any): -- 1 of 5 -- 2 This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] This matter was an application for leave to appeal, or an appeal, received in QCAT on 7 February 2012. The decision challenged by this application was delivered on 12 January 2012. That decision answered, in the affirmative, a question of law identified for decision by this Tribunal at a compulsory conference held on 19 September 2011. At that latter date, the applicant and respondent were directed to file submissions on the following issue:- “Whether, under the Plumbing and Drainage Act 2002, the Standard Plumbing and Drainage Regulation 2003, the on-site Sewage Code 2002 and AS/NZ 1457 of 2000 as they existed at 2 June 2005, the on-site sewerage treatment system as installed at the Applicants premises at 3 Westringia Court, Craignish, could be lawfully approved by the Local Authority without the prior approval of the system by the Chief Executive of the Department of Natural Resources Mines.”1 [2] The Adjudicator to whom the matter was referred answered the question in the affirmative, although I note that the Adjudicator’s reasons omitted the words in italics in the question which had been referred for decision. The learned Adjudicator recorded that the parties were in dispute as to whether the then respondent, Waterwise Design Pty Ltd, was obliged to compensate the applicant, Ms Coppens, for losses that Ms Coppens alleged she had suffered following the installation of an on-site sewerage treatment facility at Ms Coppens’ property. Ms Coppens had been the owner builder of a house constructed on the property, and she engaged the respondent to design the sewerage treatment facility. [3] The material filed before the Adjudicator, and on this application for leave to appeal, reveals that Ms Coppens’ application was filed on 15 November 2010, seeking damages from both Waterwise Design Pty Ltd (as the second respondent at that stage), and from the Fraser Coast City Council, the successor in title to the Hervey Bay City Council. However, on 9 June 2011, this Tribunal struck out the claim against the Fraser Coast Regional Council, concluding that it had no jurisdiction to hear the case against the Council, and at the compulsory conference held on 19 September 2011, it was determined that the question stated above should be determined by this Tribunal as a preliminary matter. [4] The terms of the question to be answered reflect the history of the matter, as it emerges from the material submitted by the parties. In or about May 2005, Ms Coppens had engaged Water World Design Pty Ltd to design an on-site sewerage system for a house being built by her near Hervey Bay. In a lengthy written submission from herself, submitted to this Tribunal, on 1 November 2011, she contended that the then local Council had referred 1 Emphasis added. -- 2 of 5 -- 3 her to a named plumber, Stan Jones Plumbing, and Waterwise Design Pty Ltd, when she had approached that Council seeking confirmation that an on-site sewerage system she proposed to have installed would be compliant with local building requirements. [5] It is common ground that Waterwise Design Pty Ltd did design an on-site sewerage system for Ms Coppens, to be installed in the premises at 3 Westringia Court at Craignish, on or about 8 June 2005. Ms Coppens submitted that design to the Council for approval. [6] She makes a point that the proposed plumbing and drainage work for which she sought the Council approval was described by her in handwriting on the appropriate form as a “sand filtered septic system recycling the water for irrigation on garden” and, in another column, she inserted the words “garden irrigation”, to describe the “other purposes” for which the plumbing and drainage work was required. The point she makes is that she specified she wanted the sand filtered septic system to be used for irrigation on her garden. [7] She contends that this made clear that she was seeking approval for the construction of a sewerage treatment facility that would have an above ground irrigation capacity, using the water which had been cleaned by the filter through the sand. As it happened, however, the design (prepared by the respondent Waterwise Design Pty Ltd) submitted by her to the Council for approval (and approved by the Council as compliant on 23 June 2005) was for a on-site sewerage facility with a sand filter, one which as designed, would disburse the sand filtered water into the soil below the relevant garden surface. The fact is demonstrated by a stamped approval form on the plan submitted to the Council by Ms Coppens which reads: “effluent from this on-site sewerage facility unless disinfected in accordance with the requirements of the on-site Sewerage Code 2002 must be disbursed in to the land application area a minimum of 100mm below surface of top soil.” [8] It appears that while Ms Coppens considered that she had applied to the Council for the approval of a on-site sewerage treatment facility that would allow her to lawfully use the filtered, cleaned, water for surface irrigation, she had in fact applied for, and been given approval for, a subsurface system. [9] The on-site sewerage system was installed by the plumbers suggested by the Council, Stan Jones, but was found to be defective in its performance. Ms Coppens’ principal complaint was that when rain occurred, treated effluent would float continuously over the surface as it ran back into a filter and this would go on for many days at a time. She brought proceedings against the plumber, and on 28 May 2010 this Tribunal found in her favour, and ordered the plumber to pay her $8,468.16, which amount was apparently paid on 16 July 2010. -- 3 of 5 -- 4 [10] Her application for orders filed in this Tribunal on 15 November 2010 says (at page 3 thereof) that, “the application submitted by the applicant clearly identified a secondary waste water system as surface irrigation was requested” And, “The applicant purchased a secondary treatment plan from Stan Jones Plumbing named Purawaste. The Council amended their records during 2007 to show that a primary waste water treatment plant was installed according to their request for my permission to do so.” [11] Regarding the contention that the Council had improperly amended its records during 2007, it appears to overlook the stamp described earlier, placed on the original design by the Hervey Bay City Council, apparently in 2005. Her application acknowledged that she was aware at the time that irrigation was not possible from a primary (septic tank) system. [12] Irrespective of what Ms Coppens wanted the Council to approve, the design that was approved was for a subsurface system, not an above ground irrigation system. The difference between what she understood she was applying to have approved, and what was approved, appears to have resulted in this litigation. The learned Adjudicator, after considering the relevant legislation (the Plumbing and Drainage Act 2002) the on-site Sewerage Code 2002 and the ES/NZ 1546, considered the provisions of clause 11.2(c) of the on-site Sewerage Code 2002, applied to the relevant facility on Ms Coppens’ premises by reason of s 92 of the Plumbing and Drainage Act 2002. [13] The effect of that legislation is that on-site sewerage facilities can be approved by the Chief Executive (of the Department) if they are pre fabricated (s 93 of the Plumbing and Drainage Act 2002) or built items built on the premises (s 94). Schedule 3 of that Act2 defined a “built item” to include an element of an on-site sewerage treatment plant, if the element was wholly built on the premises where the plant is or was to be used. Clause 11.2 of the on-site Sewerage Code 2002 provided that the requirement for “type specification” by the Department of Natural Resources and Mines did not apply to a built item that was specifically designed and constructed in-situ by the owner or occupier of the premises or a person other than the owner or occupier and effluent was discharged to a subsurface land application system eg constructed surface or subsurface wetland and associated land application area. [14] The learned Adjudicator found that it was not disputed by the parties that the facility as installed was a built item which therefore attracted the operation of s 94, subject to the operation of the provisions of clause 11.2. Ms Coppens argues that the Adjudicator was in error in that finding (that it was not disputed), because Ms Coppens’ written submission, supplied on 1 November 2011 to this Tribunal, had contended that the septic tank was 2 Reprint 1A, as in force on 29 November 2004. -- 4 of 5 -- 5 prefabricated; and that she had applied to the Council for a garden irrigation system, a “built item”. Her application for leave to appeal from the Adjudicator’s determination contends that section 94 of the Act did not apply, as the system installed had prefabricated items. [15] The problem that Ms Coppens faces on this appeal, or application for leave to appeal, is that while the septic tank was undoubtedly prefabricated, the definition of a “built” item includes elements of an on- site sewerage treatment plant wholly built on the premises, and it was open to the Adjudicator to find that the sewerage treatment system as installed on the premises, was consistent with the type of system described in clause 11.2 of the on-site Sewerage Code 2002. The sand filter portion of it was a built item, and specifically designed for construction in situ, by a person other than the occupier, and effluent was installed to a subsurface land application system. It was not an irrigation facility. Accordingly, the appeal and the application for leave to appeal must be dismissed. -- 5 of 5 --