Punishment for violation of sewer connection order

Case no. 156/2019
Judgment delivered on 11 March 2020

The Prosecution Service
vs.
T2 and T1

The issue in this case was whether T2 and T1 could be punished for violating an order from the municipal authorities of September 2016 to discharge wastewater from their property via the public sewer. T2 and T1 had, among other things, claimed that they should not be punished for violating the order, because, in 2012, the Prosecution Service had decided not to withdraw the charge in a previous criminal case on violation of a similar order issued in 2009. T2 and T1 had also asserted that the order was invalid, as it was not possible to connect to the service pipe established by the Municipality, or it would involve disproportionate costs, and because the Municipality had not granted their requests for access to documents.

The reason for the withdrawal of the charge in 2012 was that the Municipality had revoked the order, among other things because of doubts as to whether it was technically possible to connect to the sewer. At the time, the Municipality had announced that the case would be reopened once the location of a small pump well had been established. Considering these circumstances, the Supreme Court found that the Municipalities’ revocation of the order did not preclude the issue of a new sewer connection order in 2016.

The Supreme Court found no basis for setting aside the High Court’s assessment that it was reasonably possible to connect to the sewer and that this was thus not in violation of the principle of proportionality. In addition, no information had been produced before the Supreme Court to establish that T2 and T1 had been refused access to information which could have affected their abilities to arrange for their defence during the Municipality’s processing of the case before it issued the order in 2016.

The Municipality’s order was thus not invalid, and T2 and T1 were fined and ordered to pay default fines if the order was not complied with.