Antoniou v The Council of the City of Sydney

[2017] NSWLEC 1334

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

1. 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.

2. 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”.

3. 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.

4. 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.

5. The final orders to give effect to the parties’ agreement are:

1. 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.

2. The direction relating to the vegetation in plate 6 on page 4 of the Direction is revoked.

3. 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.

4. The appeal is upheld.

…………….

D M Dickson

Commissioner of the Court

64757.17 Dickson - the Directions (1.39 MB, pdf)