Autore v Waverley Council

Land and Environment Court

New South Wales

Medium Neutral Citation:	Autore & anor v Waverley Council [2015] NSWLEC 1350
Hearing dates:	12 August 2015
Date of orders:	25 August 2015
Decision date:	25 August 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application for an exemption refused
Catchwords:	SWIMMING POOLS: Application for pool barrier exemption;
Legislation Cited:	Swimming Pools Act 1992 Swimming Pools Regulation 2008
Cases Cited:	Reemst v Woollahra Municipal Council [2012] NSWLEC 1141
Category:	Principal judgment
Parties:	Rosario and Jane Autore (Applicants) Waverley Council (Respondent)
Representation:	Applicant: Mr N Eastman (Barrister) Respondent: Mr S Patterson (Solicitor)     Solicitors: Applicant: Gadens Respondent: Wiltshire Webb Staunton Beattie Lawyers
File Number(s):	20256 of 2015

Judgment

1. COMMISSIONER: This is an appeal against Waverley Council’s refusal to grant an exemption pursuant to s 22 of the Swimming Pools Act 1992 (the Pools Act). The applicants seek an exemption with respect to swimming pool barrier requirements. The appeal comes to the Court under s 26(1) of the Pools Act.

2. The applicants’ in ground concrete swimming pool is located at the rear of their property at 21 Kenneth Street, Tamarama (the site). It was approved in 2013 by DA24/2012. The pool is located at the rear of the site. At the rear of the adjoining property to the east, 23 Kenneth Street is another in ground swimming pool. The rear boundaries of both properties adjoin a public reserve on Mackenzies Bay through which traverses the Bondi to Bronte coastal path. Both properties enjoy extensive views of the ocean, beaches and coastal headlands.

3. The masonry boundary wall between 21 and 23 Kenneth Street forms a common side wall between the two pool enclosures. The barrier forming the northern side of the pool enclosure at 21 is further north than the northern barrier on 23. In the area where the two pools are otherwise enclosed, the common masonry wall ranges in height over two stepped sections from 1730mm to 1030mm measured from the ground level of the applicants’ property. The 1030mm section is at the southern end of the eastern boundary wall. This section adjoins a flight of stairs providing rear access from 23 Kenneth Street down to the reserve.

4. It is these portions of the boundary wall between the parties’ pool enclosures for which the applicants seek an exemption from the 1800mm height prescribed in the relevant Act, Regulations and Australian Standards.

5. Within the pool enclosure of 21 Kenneth Street, there is a ‘day bed’ constructed along the inside of the northern pool fence between the gate on the western end and abutting the boundary wall on the east.

6. The exemption is sought under s 22(1)(b) of the Pools Act; the applicants do not rely on the ‘impracticable or unreasonable’ provisions of s 22(1)(a) (see [9] below). The applicants’ position is articulated in the “Section 22 Exemption Request Report” accompanying the ‘Pool Barrier Exemption Request Form’ submitted to council on 15 January 2015 prepared by Mr Darroch, the applicants’ planner. Relevantly this states:

The applicant notes that…