Antoniou v The Council of the City of Sydney
[2017] NSWLEC 1334
•28 June 2017
Land and Environment Court
New South Wales
Medium Neutral Citation: Antoniou v The Council of the City of Sydney [2017] NSWLEC 1334 Hearing dates: Conciliation conference on 20 June 2017 Date of orders: 28 June 2017 Decision date: 28 June 2017 Jurisdiction: Class 2 Before: Dickson C Decision: See [5] below
Catchwords: DEVELOPMENT APPEAL: against Councils Direction under Swimming Pools Act, 1992, Section 23 (1); conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979
Swimming Pools Act, 1992,Category: Principal judgment Parties: Fay Antoniou (First Applicant)
Anthony Antoniou (Second Applicant)
The Council of the City of Sydney (Respondent)Representation: Solicitors:
M Singh, Sydney City Council (Respondent)
File Number(s): 2017/00064757 Publication restriction: No.
Judgment
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COMMISSIONER: This is an appeal against Direction from Council to rectify issues surrounding pool barriers. Council issued on the 2nd February 2017 to the applicant a Direction to remedy noncompliance’s via the Swimming Pools Act, 1992, Section 23 (1). The applicant appeals part of those Directions.
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In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.
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The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.
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In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
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The final orders to give effect to the parties’ agreement are:
The direction dated 2 February 2017 (“the Direction”) shall be varied in relation to reason 4, plate 5 on page 4 of the Direction such that the applicant shall within ninety (90) days from the date of these orders, install a barrier compliant with Australian Standard AS1926.1-2012 on top of the southern boundary wall to a height of 900 millimetres behind and extending 900 millimetres horizontally past either side of the vegetation encircled by a red box in plate 5 of the Direction.
The direction relating to the vegetation in plate 6 on page 4 of the Direction is revoked.
The respondent shall provide to the applicant within seven (7) days from the date of these orders a file note setting out the respondents reasons for reaching the decision to agree to vary the Direction.
The appeal is upheld.
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D M Dickson
Commissioner of the Court
64757.17 Dickson - the Directions (1.39 MB, pdf)
Decision last updated: 28 June 2017
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