SEPTIC TANK CASE

Evening Post, Volume CXVI, Issue 31, 5 August 1933, Page 12

SEPTIC TANK CASE

A RIGHT OF ACTION

"INTOLERABLE NUISANCE"

INJUNCTION WITHHELD

"The evidence clearly proves that for years the Corporation, has been aware that the tank was Hot in good order because of the population it served having increased beyond its capacity. It covenanted to keep it iv good repair, and it has broken its covenant. The plaintiff is privy to that covenant, and has a remedy for the breach. • I come therefore to tho conclusion that both as a freeholder and as a leaseholder he has a right of action," said Mr. Justice Ostler in his judgment delivered today in tho Karori septic tank case. His Honour agreed that the plaintiff, John Allan Kirkcaldie, had made out a case for an injunction against the Wellington City Corporation, but he postponed granting an immediate injunction in order to give the Corporation an opportunity to bring an appeal, if so advised, at tho next sitting of the Court of Appeal, or to make some satisfactory arrangement for the abatement of the nuisance. The judgment was to' an action brought by Mr. Kirkcaldie against the Corporation claiming damages for loss alleged to have been suffered through the pollution of the South Karori Stream by effluent from the septic tank, and also an injunction to restrain future pollution. The plaintiff is a farmer and the owner of a farm of 1325 acres, and tho lessee and occupier of an adjoining farm of 314 acres through which runs tho South Karori Stream. In 1923. the Corporation decided to install a sewerage system in the western portion of Karori, the scheme adopted being tho installation of a septic tank on the bank of tho South Karori Stream. The system commenced operating late in 1925, and early in 1929 tho.Corporation received its first official complaint as to the pollution of tho stream. REPEATED COMPLAINTS. "From that date onward the Corporation has had continuous complaints as to the pollution of the stream from the Public Health Department, the Makara County Council, the Wellington Acclimatisation Society, and the occupiers of land with riparian rights below the outfall," said his Honour. "There is a, largo pilo of correspondence in evidence discovered by the Corporation, and it abundantly shows not only the persistence and number of complaints, but it contains admissions by the City Engineer of the seriousness of the. pollution. "In spite of these repeated complaints nothing has been done by the Corporation to remedy the nuisance, the reason being, as frankly disclosed in the correspondence, that to do so -would cost the Corporation a. considerable amount of money.. Meanwhile, as the population of Western Karori has increased the degree \of pollution has increased. After repeated requests to remedy the nuisance, without obtaining any satisfaction, plaintiff at length, on December 19, 1932, issued a writ against the Corporation. In his amended statement of/claim he prays for aii injunction to restrain the Corporation from negligently passing sewage through the tank so as to pollute tho water of the stream or to cause a nuisance. He also claims damages for certain stock which he alleges has died through grazing on contaminated ground near the stream, and also the sum of £3 17s 6d per day from September 18, 1932, down to the date of judgment, being his estimate of the loss he has suffered through not being able to depasture seventy cows on his freehold and leasehold laud by reason ot ■ the pollution of the stream. He further claims £250 general damages. The Corporation in its statement of defence denies that any pollution or any nuisance has been caused by its system, but it pleads in addition that the work was constructed under its statutory powers. MENACE TO PUBLIC HEALTH. "On the questions of fact I have no doubt whatever," his Honour went on "There is no"' doubt whatever that the discharge of this septic tank has grossly polluted the South Karori Stream, and having had the opportunity of inspecting it myself, I Oo not think that any statement made by any o± the witnesses for tho plaintiff is one whit exaggerated." ' His Honour referred in detail to the pollution which the tank gave rise to, saying that as the population of Karori was growing rapidly, the tank was every year growing more inadequato to Cope with the dyainago of the area affected. "The evidence," he said, "is that there is no practical alternative plan of getting rid of the sludge, or of making the tank effective. The nuisance caused by it is bound not only to continue, but to increase. It has outlived its period of usefulness, and has become a- nuisance and a' menace to public health. The most practical way_ of abolishing the nuisance is to continue the line of pipe? carrying tho sewage to the tank right down to the sea. This would cost £13,000 according to Mr. Vickerman, and over £20,000 in the opinion of the council's engineers." THE LEGAL POSITION. Dealing with the legal position, his Honour said that unless the corporation in creating this intolerable nuisance was acting within its statutory powers its action amounted to a tort against tho lower riparian owners, who had a right of action against tho corporation. The first question, therefore, was whether the Corporation had statutory power to create such a nuisance. In his opinion so far as the plaintiff's freehold land was.concerned'the Corporation had infringed his rights without statutory authority, because it had never acquired any statutory right to do so, and the plaintiff therefore had- his remedy in the Court for tho infringement. Having come to this decision, ho said, it became unnecessary to decide the question, which was strenuously disputed, as to whether the nuisance created by the defendants amounted to a public nuisance. In regard to tho plaintiff's leasehold land, his Honour said that the plaintiff took the lease subject to the right of the Corporation to create a nuisance provided that it did not fail to keep the tank in good order and repair. "The question then is whether he has proved a breach of this covenant by the Corporation," ho added. "If so, he has a remedy. In my opinion ho has proved that the Corporation has failed to keep the tank in good order and repair. It was not in good order when I inspected it, inasmuch as owing to overloading it was not properly performing its function. The Corporation was fully aware of this. It had been so advised by its City Engineer. It know that the tank was so overloaded that if it was not frequently desludgcd it soon lost most of its efficacy, and became merely a settling tank for sewage, but that it could not be desludged by turning the solid matter into tho stream without creating an intolerable nuisance, except on the very rare occasions of phenomenal flood." INJUNCTION. POSTPONED. He therefore came to the conclusion that both as a freeholder and a leaseholder the plaintiff had a right of action. "He claims both damages for past losses and injunction," his Honour said. "With regard to the injunction I think he has clearly made

out his right, but injunction is a heavy weapon to wield, and as I said during the argument, to grant an immediate injunction would impose a grievous burden upon the citizens residing in Karori. I propose therefore to postpone settlement of the terms of the injunction meanwhile, in order to give tho Corporation an opportunity to appeal to the Court of Appeal at its next sittings if so advised. If the Corporation does not bring an appeal at.the next sittings of the Court of Appeal, and docs not make some arrangement satisfactory to plaintiff for the abatement of the nuisance, I shall have to settle the terms of the injunction. As the question of injunction is being held over I propose also to hold over the question of damages meanwhile." At the hearing Mr. E. K. Kirkcaldie appeared for the plaintiff, and the City Solicitor (Mr. J. O'Shea) and the Assistant City Solicitor (Mr. J. I Lockie) for tho Corporation,