EHA State Conference 2016 Paving the Way Insights

EHA State Conference 2016 Paving the Way: Insights into the First Wastewater Prosecution 9 December 2016 Presented by Cimon Burke, Kelledy. Jones Lawyers Cassie Tuck, Alexandrina Council

• Council approved a traditional aerobic wastewater system with subsurface irrigation

• 31 May 2013 Council was notified by All Waste Water Services that the quarterly service had not been undertaken – Letter sent requesting a service to be undertaken – the back and forward correspondence started!

• After 3 letters to the resident (and 3 letters back) she requested a meeting with senior staff – ‘to be set up as a tribunal’ • The meeting did not result in any progress • Given the history it was considered unlikely the situation would end in cooperation

• Why isn't it just a non compliance with the SA Health Onsite Wastewater Systems Code? Wastewater Regulations • Requires compliance with the code SA Health Product Approval • Requires servicing in accordance with the Manufactures Householders Operational Manual SA Health Onsite Wastewater Systems Code • In accordance with any manufactures’ or designers’ instructions Manufactures Householders Operational Manual • Requires servicing in accordance with SA Health requirements

Operator’s Manual The maintenance and operation of the Ri-Treat waste water treatment system is subject to regulations under state law. The unit should be serviced by an authorised service agent. Under South Australian Department of Health law the household is required to have the unit serviced every three months by a South Australian Department of Health certified agent to ensure consistent performance of the system. Due to its design and depending upon the manner in which the system is used, the Ri. Treat Waste Water Treatment System will require a full service only after three to five years operation.

Imposition of Conditions Regulation 25 SAPH (Wastewater) Regulations outlines scope of conditions. Prescribed expiable conditions include: – a condition that requires a person to monitor the performance of the wastewater system in a specified manner (including by inspections carried out at specified times at the person's expense) and to provide the relevant authority with specified information in a specified manner and at specified times; – a condition that requires the wastewater system to be operated, maintained or serviced by a person of a specified class; – a condition that requires records of a specified kind to be created, maintained, and provided to the relevant authority;

Imposition of Conditions Regulations 25(6) and (7) SAPH (Wastewater) Regulations: 1. Council may vary or revoke on application 2. Council may, on its own initiative, vary or revoke a condition or impose a further condition: – by written notice to the operator – change does not take effect until 6 months from the giving of notice unless: • operator consents • the change is necessary to prevent or mitigate significant harm to public or environmental health or the risk of such harm

The Offence Timeline 19 March 2014 new conditions were imposed • Conditions took effect 19 September 2014 – Conditions required quarterly servicing and evidence of service being provided to Council within one month of same – Service was due to be undertaken prior to 19 December 2014 – The service report was to be provided to Council prior to 19 January 2015 23 January 2015 no report had been received so a request was made to the resident

The Offence Timeline • 1 June 2015 an expiation was issued for failure to comply with the wastewater approval conditions – Service due before 28 April 2015 and report to Council 28 May 2015 • 3 June 2015 Resident elected to be prosecuted • Approached Cimon to see where our case stood – Advised to contact all known servicing agents – Advised to interview resident • Council decided to pursue prosecution

The Offence Timeline • Complaint filed 9 September 2015 • Papers were served late September 2015 via a process server – Refused to accept them and notified Council that she had left them on the verge • Council staff served the papers with police presence

The Offence Regulation 12(1) SAPH (Wastewater) Regulations The operator of a wastewater system must ensure that the system is operated, maintained and serviced in accordance with— a) any conditions of a wastewater works approval relating to the system (whether granted before or after the person became the operator of the system); and a) the prescribed codes to the extent that they are applicable. Maximum penalty: $5 000. Expiation fee: In the case of an offence against paragraph (a) comprising a contravention of a prescribed expiable condition—$315.

• First Mention • 3 October 2015 • Pre Trial Conference • 9 December 2015 • Trial Day 1 • 7 April 2016 • Trial Day 2 • 9 June 2016 • Judgment & Sentencing • 9 August 2016

Pre-Trial Process First Mention: – Charge contested – Defendant disputes the condition – Letter to Accused: • Notified Defendant of Rule 26 MCR • Condition valid and binding • Offer where plea entered and service undertaken Pre-Trial Conference: – Charge remains contested – Service of Affidavit evidence – notice of rule 35 MCR Status Conference: – – Objection to Affidavit evidence determined (in Council’s favour) Warning provided from the Bench ‘doomed to fail’ Listed for trial Post Court discussion (final attempt to resolve)

Trial Process – Day 1 • Set down for one day – took two • Prosecution Opening – statutory framework explained • Defence Opening (optional) • Prosecution witness called: – Examination in chief: • condition imposed pursuant to delegated authority • reasons for condition – Cross-examination (adjourned)

Trial Process – Day 2 • Cross Examination continues • Magistrate finds case to answer • Defence opted not to give evidence • Prosecution Closing • Defence Closing • Judgment Reserved

Judgment & Penalty • Statement of C Tuck – notice to Defendant • Judgment delivered – Guilty as charged! • Sentencing Submissions – – scale of seriousness - not a trifling offence! no contrition need for personal/general deterrence cost submissions • Penalty & Orders – $3, 000 fine – $12, 000 costs

Lessons Learnt • Importance of Witness Preparation • Value of Pre-trial correspondence • Council has now altered – Standard approval conditions – Process of following up failure to service aerobic systems • Importance of keeping senior staff informed of decisions and progress with difficult residents

Questions?