Coppens v Water Wise Design Pty Ltd [2012] QCAT 9

CITATION: Coppens v Water Wise Design Pty Ltd [2012] QCAT 9 PARTIES: Josephine Rosalie Coppens (Applicant/Appellant) v Water Wise Design Pty Ltd (Respondent) APPLICATION NUMBER: BDL375-10 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Kate Buxton, Adjudicator DELIVERED ON: 20 January 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The Treatment Facility 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. CATCHWORDS: Whether on-site sewerage treatment facility could be approved by local authority Plumbing and Drainage Act 2002 Standard Plumbing and Drainage Regulation 2003 On-Site Sewerage Code 2002 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] The parties to this application, which was filed on 15 November 2010, are in dispute as to whether the Respondent, Water Wise Design Pty Ltd, ought compensate the Applicant, Ms Coppens, for losses she alleges to have sustained following the installation of an on-site sewerage treatment facility -- 1 of 4 -- 2 (the “Treatment Facility”) at her property. She was the owner-builder of a house constructed on that property and she engaged the respondent to design the Treatment Facility. [2] Following a compulsory conference held on 19 September 2011 a direction was issued for the determination by this Tribunal of the following issue: Whether, under the Plumbing and Drainage Act 2002, the Standard Plumbing and Drainage Regulation 2003, the On-Site Sewerage Code 2002 and AS/NZ1547 of 2000, as they existed at 2 June 2005, the Treatment Facility 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. [3] The local authority is no longer a party to these proceedings (the claim against it having been struck out for want of jurisdiction on 9 June 2011) and has not, therefore, made any submissions in relation to its decision to approve the Treatment Facility. Any decision of this Tribunal would not, therefore, bind the local authority. Further, any decision as to the lawfulness or otherwise of the local authority’s approval of the system is not necessarily determinative of the wide ranging allegations made against the respondent, which relate to its role in designing the system, including, inter alia, advice as to the appropriateness of the system for the relevant purpose. Nonetheless, this Tribunal has been directed to determine, as a preliminary point, whether the local authority’s approval of the Treatment Facility was lawful in circumstances where that system was not approved by the Chief Executive of the Department of Natural Resources. Was Departmental Approval Required? [4] The Plumbing and Drainage Act 2002 (as enacted on 2 June 2005 – see Reprint 1A in force as at 29 November 2004) (the “Act”), Part 5, deals with approvals necessary to build an on-site sewerage treatment facility. Section 92 of that Act applies the On-site Sewerage Code 2002 and AS/NZ 1546 to on-site sewerage facilities such as the Treatment Facility. It is not disputed by the parties that the Treatment Facility falls within this definition. [5] Division 3 of Part 5 provides that an application may be made to the Chief Executive of the Department of Natural Resources for approval of certain sewerage treatment facilities. Within that division, section 94 deals with applications to the Chief Executive for the approval of “built items” which are defined in Schedule 3 as: a) An on-site sewerage treatment plant that is wholly built on the premises where it is, or is to be, used; or b) An element of an on-site sewerage treatment plant, if the element is wholly built on the premises where the plant is, or is to be, used. [6] It is not disputed by the parties that the Treatment Facility is a built item which therefore attracts the operation of s 94, subject to the operation of other provisions of the Act. -- 2 of 4 -- 3 [7] Division 4 of part 5 defines the role of local governments in the approval process. Section 96(2) sets out the criteria upon which the local government may approve the building of an on-site sewerage facility. These cumulative requirements include: a) That the facility is designed to comply with the codes, standards or design rules mentioned in s 92 (s 96(2)(b)); b) If (as here) the facility includes an on-site sewerage treatment plant: i) To the extent that the plant consists of a prefabricated item – the plant conforms with the model approval; or ii) To the extent that the plant consists of a built item – the plant conforms with a type specification approval. [8] The applicant argues that, as neither a model approval nor a type specification approval was obtained, the local government ought not to have approved the Treatment Facility. [9] The Respondent argues that, as the plant consisted of built work, the relevant question is whether a type specification approval was necessary. The Respondent contends that, in this case, the need for such approval was determined by whether a type specification approval was required by the On-site Sewerage Code 2002 (which I have already noted was applied to the Treatment Facility by operation of s 92 of the Act). The Respondent further relied upon Clause 11.2(c) of that code as providing that approval by the Department of Natural Resources 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 is discharged to a subsurface land application system. I accept that the treatment system is consistent with the type of system described in clause 11.2. [10] The Applicant, in her submissions, referred to other parts of the Code but did not specifically address the Respondent’s submission that clause 11.2 applies to excuse the Treatment Facility from requiring the approval of the Department of Natural Resources. [11] The Tribunal is persuaded by the Respondent’s submission that the application of s 11.2 of the On-site Sewerage Code 2002 (through s 92 of the Act) to the approval process described in s 96 of the Act has the effect of removing the need for approval to be obtained from the Department of Natural Resources in respect of the subject Treatment Facility. [12] It is therefore the conclusion of this Tribunal that the Treatment Facility 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. Next Steps -- 3 of 4 -- 4 [13] At the compulsory conference on 19 September 2011 the application was adjourned to be re-listed for directions not before 14 days after the issue of this decision. The matter is therefore to be listed on 15 February 2012 for directions for the future conduct of this application. -- 4 of 4 --