Fiva v Free Wesleyan Church of Tonga [2014] TOSC 5; CV 8 of 2013 (14 February 2014)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

CV 8 of 2013

BETWEEN:

1. FALANISESI FIVA
2. SILONGO TELEFONI
3. LOUMAILE HAKAUMOTU
4. KILISIMASI HAKAUMOTU
5. SIAOSI SAAFI
6. 'OFA LASA
Plaintiffs

AND:

FREE WESLEYAN CHURCH OF TONGA
Defendant

'O. Pouono for the Plaintiffs
T. Fakahua for the Defendant

JUDGMENT

[1] Ha'asini and Hamula are contiguous villages on the coast road at the South Eastern end of Tongatapu with a combined population of about 800. A helpful location map, apparently derived from an aerial photograph was produced by consent as Exhibit P-G, page 2. This map illustrates the location of two water wells, one in Ha'asini and the other at Hamula. It is the integrity of the former which is at issue in this action, it not being in dispute that the latter has been out of service for some years.

[2] On page 3 of the same exhibit there is another photograph showing the location of the production well in greater detail. From this photograph it can be seen that the well is located towards the Eastern boundary of an open area of land described in the report as a "well field" and referred to throughout the trial as the "water field".

[3] A map of the water field was produced at the trial by consent and a copy is attached to this judgment (Annexure A). The top of the map is West and the bottom East. At the top of the page towards the right is a square box labeled "R-T & Westpac" which I was advised was a cooperative store and a bank, both there for many years (with septic tank attached, but not marked). Towards the bottom left hand side there is a residence and an adjacent square marked "SPT" which is the abbreviation for septic tank. The map indicates the location of the present (new) water source and a water tank (tower). Prior to November 2012 these were the only permanent structures on the water field. A pipe ran underground from the water tower to the main road passing, as it reached the road, four concrete stumps which had once been the foundations of a later-removed water tower and a wooden shed which was the water rates office.

[4] The supply of domestic water is governed by Part 5 of the Public Health Act 2008 which imposes upon the Minister the duty:

(a) to determine which sources of water in Tonga are suitable for public water supply; and

(b) regularly to take such steps as may be necessary for ascertaining the sufficiency and wholesomeness of the water supplies.

Section 61 of the Act specifies that "the Minister shall advise the village water committee on all measures required to ensure that the water used in its area is safe for drinking and remains so".

[5] The water committee is the creation of the Water Supply Regulations 1963 made pursuant to the Public Health Act. Regulation 2 requires:

"the town officer of every village in the Kingdom [to] take steps to organize and form a committee by popular vote of all Tongans over the age of 21 years in the village for the purpose of assisting the village water scheme and to carry out all the necessary work to provide water, particularly for the functions and activities in relation to the health of the people of the village and the village schools".

[6] I heard evidence which I accept that there has been a water committee for many years in Ha'asini and Hamula. The First Plaintiff is the current Town Officer and the Chairman of the Committee. Several of the other Plaintiffs are present or former members of the Committee. I also was told, and accept as proved, that in about 1963 there was an outbreak of typhoid in the villages. After an investigation by an officer of the WHO, Mr Adams, the then Minister of Lands HRH Prince Tu'ipelehake ordered about 6 or 7 families then living on that area now known as the water field, to relocate. They moved their houses elsewhere and the water field was left unoccupied save for the two buildings, the shop and the residence, referred to in paragraph 3 above.

[7] The reason for evacuating the water field in 1963 is as follows. According to Exhibit P-G (which was not disputed) the water field is elevated to an approximate height of 45m above sea level. The freshwater water table (or Ghyben-Herzberg water lens) is approximately 42.56 metres below the ground surface. The freshwater lens is replenished by rain water falling on the ground and gradually permeating through. It will be obvious that if toxic liquids are discharged onto the land there is a danger that these liquids will also seep down and pollute the lens. It was not in dispute that the greater the discharge of toxic liquids, the greater the risk of pollution. Neither was it in dispute that the closer the discharge is to the well, the more likely it is that the well source will become contaminated. It was also accepted that rain (and other liquids) falling onto the ground has a tendency to run downhill.

[8] In most of the South Pacific Islands, sewage disposal is not reticulated and most households rely on septic tanks. Mr Seventeen Toumo'ua, an expert on their construction, explained to the Court how a septic tank works. Put very simply, untreated waste from a toilet is flushed into the septic tank which is invariably a sealed concrete box located underground and adjacent to the dwelling house. By bacterial, gravitational and chemical processes the waste separates into two parts. The first is a sludge which settles at the bottom of the tank and never leaves the tank until, having gradually built up, it is physically removed and taken away for safe disposal. The other part of the waste (in a septic tank which is working properly) is discharged as a clear liquid from an overflow pipe which itself disperses the liquid over the adjoining area. This liquid, although toxic if consumed, is acceptably clean for gradual introduction into the soil.

[9] It appears that from 1963 to 2012 the evacuated water field was left undisturbed. It came to be regarded as an amenity open space for the village and a place where children played, sports were organized and village fairs located. I understand that responsibility for its upkeep was assumed by the water committee. In about 2012, however, the Defendant decided that it wished to build a new residence for the local church minister.

[10] Viliami Teli Tiseni, is a graduate of the Australia National University. He is a former civil servant and was born and brought up in Ha'asini. The water field is on the other side of the road from his home. From July 2010 until his return to New Zealand in 2012 he was the auditor for the water committee. Tiseni told the Court that on 6 June 2012 a village meeting, or Fono, was held, the purpose of this meeting being to discuss matters connected with the Catholic cemetery. The Minister of Lands was present. Also present was DW2 Sione Foueti who at the time was the Town Officer, the chairman of the water committee and also the Chief Steward of the local Free Wesleyan Church. Also present were one or more of the Plaintiffs. After the main agenda items had been dealt with those present were asked whether there was any other business. At this point Sione Foueti raised the possibility of a piece of vacant land being granted to the Defendant on which to construct a new residence for the local Church Minister. According to Tiseni, the Minister of Lands immediately agreed, subject to the land being surveyed. The question of the suitability of the construction of this residence on the water field was not raised. Two weeks later the Ministry of Lands advised that a lease had been approved. A copy of a 50 year Crown lease to the Defendant dated 13 June 2013 was produced as Exhibit D-1. The portion of land leased includes the "New FWC Residence and SPT" marked on Annexure A, at the Western end of the water field, close to the main road. It will be seen from this Annex that the water pipe from the water tower to the main road formerly ran under this piece of land and that the water rates office and the old water tower stumps were also located within its boundaries.

[11] When, following the Fono and the grant of the lease, it became more widely known in the village that approval had been granted for the construction of a new residence (and associated septic tank) on part of the water field, a serious dispute arose. There was a substantial body of opinion that approval should never have been granted. In October 2012 there were resignations from the water committee. In November 2012 preparations were made for the construction of the new residence and building began in December. On 5 February 2013 these proceedings were commenced. In affidavits filed in support of an interim injunction preventing the completion of the partly constructed dwelling, the six Plaintiffs, claiming to be present or past members of the water committee complained that the development of the water field by the construction of the residence had proceeded against their wishes and the wishes of many other inhabitants of the villages and represented a health risk to the water supply. The fifth Plaintiff exhibited a petition containing 155 signatories asking for further work on the construction of the residence to be halted. After considering the contents of three affidavits filed in response, I granted an interim injunction preventing the use of the septic tank attached to the partially constructed residence. On 20 February 2013 I allowed the Defendant to complete the construction of the residence but granted an indefinite order, which remains in place, preventing the use of the septic tank. My reasons for granting that order are set out in my written decision of 20 February 2013. On 3 May 2013 the Court travelled to Hamula and Ha'asini and inspected the water field and the developments upon it.

[12] [On 6 May 2013 34 residents of Ha'asini commenced a separate legal action (CV36/2013) claiming that they had been disconnected by the Plaintiffs herein as a consequence of siding with the Water committee and opposing the plan of the FWC. After granting injunctive relief in that matter it was agreed that no further steps would be taken until the outcome of these proceedings was known].

[13] On 18 February 2013 an amended Statement of Claim was filed. The focus of the Plaintiff's case was that the Defendant had constructed its house on the water field despite it being necessary that this area be kept free of development to prevent a further outbreak of typhoid resulting from the release of effluent from the associated septic tank. The Plaintiffs sought the removal of the new house.

[14] A Defence to the amended Statement of Claim was filed on 15 March 2013. The Defendant submitted first, that the Defendant had a perfectly valid lease over the land occupied by new house and that they had obtained the same after complying with "The Building Code Process, that is the Ministry of Lands and Survey and Natural Resources, Fire Department, Ministry of Health, Ministry of Infrastructure and they approved the situation of the same prior to the construction of the Defendant's residence". Secondly, the Defendant suggested that the Plaintiffs had no locus standi to bring the proceedings. Thirdly, it was argued that the proceedings were brought in the wrong court and should have been brought in the Land Court. Finally, it was submitted that (as may be seen from Annexure A) there were other residences adjacent to the water field which were closer to the well than the new house. Since these posed no risk, how could it be argued that the new residence was a danger to health?

[15] The trial took place on 24 & 25 September 2013 and on 14 & 15 January 2014. Following the hearing, written submissions were filed by counsel for which I am grateful. As will be seen from these submissions, the fundamental issue between the parties is whether the Defendant, having lawfully obtained a lease of the land for the purpose of building its house there should be allowed to enjoy the use of the land and house or whether, in the interests of public health, the house should be removed, or, at the very least, be prevented from discharging waste, including effluent, from its septic tank onto a portion of what, for the last 50 years, has been accepted as the village's water field.

[16] Given the money that has been spent on the construction of the house by the Defendant, a charitable organization, a decision to prevent its use would only be reached with considerable reluctance. I am satisfied however that the use of the house is incompatible with continued integrity of the water field and the continued supply of potable water to the neighboring communities.

[17] I accept that the Defendant's lease is unassailable but I cannot accept that all proper preliminaries were complied with before permission to use the land for residential purposes was granted.

[18] According to PW2 Semisi Moala who referred to Exhibit P-F, there is no doubt that the intention in 1985 was to give the water committee 10 perches of land under the provisions of section 138 (1) of the Land Act. There was also supposed to be an enquiry by the Ministry of Health into the matter but it appears that nothing took place.

[19] PW5 Quddus Fielea, a Planning Engineer with the Tonga Water Board produced a report dated 19 February 2012 in which he expressed the view that "toilets pose a significant threat to local ground water supply systems in Ha'asini......almost all of the septic tanks are of concrete block construction and they leak......it is important to identify toilets with the potential to contaminate the water supply well at Ha'asini especially from the up-gradient side of the well (emphasis added). Mr. Fielea recommended that:

"Any additional development works within the vicinity of the reserved area shall not be allowed without any hard evidence that it won't increase the risk of contaminating the ground water supplies".

[20] PW6 Taniela Kula, the Deputy Secretary at the Natural Resources Division of the Ministry of Lands prepared the excellent report Exhibit P-G already referred to. In his opinion, construction of new dwellings with septic tanks within 100 metres of the water supply should not be approved. He accepted that the Ministry had approved the grant of the lease to the Defendant but stated that this approval had been granted without prior reference to and clearance by, his Division. While being cross-examined, Mr. Kula asked: "Is it reasonable to carry on construction in the hope that there will be no contamination or is it better to stop when the risk arises?"

[21] The last witness called by the Plaintiffs was Dr. Siale 'Akauola, the Director of Health. Dr. 'Akauola told the Court that he had not himself carried out an assessment of the situation. He relied on the Senior Inspector of Health Mr. Niu Fakakovikaetau who, on 17 January 2013 had visited the water field and produced a report (Exhibit P-H). This report concluded that:

"The present situation does not confirm it will affect the water supply from the new construction because the dwelling houses which previously stood and their nearness to the water supply in respect of the new construction and also for some years in its existence.

Answering questions from the Court, the Director admitted that he did not know whether the output from the well had been monitored and he did not know how the land lay, whether, in other words, the new dwelling was on the up-gradient side of the well.

[22] The last witness was Sela Fa'u who produced the report prepared by Niu Fakakovikaetau. She told the Court that she did not go to Ha'asini with Niu. In her opinion it was safe to allow the Defendant's new house to be occupied as there were other dwellings already closer to the well. In response to a request by the Court she obtained records (Exhibit D-9) which showed that the well had been tested on 27 & 30 September 2013. These tests revealed a very wide variation of Coliform and E-Coli presence, between 72.7mpn and 574.8mpn and between less than 1mpn and 554.8mpn at tap number 2 on the two dates. She did not know, in January 2014, whether further testing had occurred. When high levels of impurities were found in the water, chlorine was added however she did not know when this had last been done.

[23] With the greatest respect, I do not find that the Ministries of Land and Health have dealt with this matter very satisfactorily at all. I think that it is a pity that the lease was applied for, almost as an afterthought, during "any other business" at the conclusion of the Fono without any proper notice or consultations beforehand. The Minister was apparently not advised, as he should have been, that the area was sensitive and had been the subject of Ministerial intervention before. The Natural Resources division of the Ministry was not consulted, as it should have been. The on-going water supply problems at Ha'asini and Hamula could, in my view, have benefitted from a rather more pro-active approach by the Ministry of Health. The argument that "some houses are already closer therefore it is safe to build another" is plainly illogical: there were already so many straws on the camel's back that one more would not matter. It also overlooks the undisputed fact that the new development is on the up-gradient side of the well, and therefore effluent would tend to flow towards it.

[24] Rather than prevent the use of this new house outright I asked the expert Seventeen Toumo'ua whether the septic tank could be relocated outside the water field boundary. In view of the distance, about 35 metres, and the need for the outflow to run downhill, he doubted whether this would be feasible. In my judgment it would be unacceptably unsafe to allow the septic tank in its present location to be used. Unless it can be relocated to a place of safe operation the new building should remain unused as a dwelling place.

[25] The Plaintiffs had several other concerns including the relocation of the water rates shed, the erection of a new water tower close to the road and the pipe running under the house. In my view those matters do not need to be dealt with by an order of the Court: the shed can be relocated elsewhere on the water field; the new tower can be erected South-West of the new residence; the pipe can again be diverted. This action has been decided on the basis of what I find to be a real risk to public health. The granting of a permanent injunction preventing the use of the septic tank in its present location does not necessarily mean that the new house has to be removed. Whether demolition should take place is for the Defendant to decide.

Result:

1. Judgment of the Plaintiffs.
2. A permanent injunction is granted preventing the use of the septic tank in its present location or any other location within the boundaries of the water field.
3. I will hear counsel as to costs.

DATED: 14 February 2014.
CHIEF JUSTICE

N. Tu'uholoaki
12/2/014.