Connell v Pittwater Council - [2014] NSWLEC 1067

Land and Environment Court

New South Wales

Medium Neutral Citation: Connell v Pittwater Council [2014] NSWLEC 1067
Hearing dates: 1 April 2014
Decision date: 15 April 2014
Jurisdiction: Class 2
Before: Pearson C
Decision:
1.The appeal is upheld.
2. Directions NOT0192/13 issued under s 23 of the Swimming Pools Act 1992 to Mr John Connell and Mrs Pamela Connell on 12 September 2013 are revoked.
3. The exhibits are returned except for exhibit 1.

Catchwords: SWIMMING POOLS - Appeal against Direction - Door handle - Whether a foothold
Legislation Cited: Civil Procedure Act 2005
Land and Environment Court Act 1979
Local Government Act 1919
Local Government Act 1993
Swimming Pools Act 1992
Swimming Pools Regulation 1998
Swimming Pools Regulation 2008
Cases Cited: Australian Education Union v Department of Education and Children's Services [2012] HCA 3
Handley v Pittwater Council [2010] NSWLEC 1335
House Of Peace Pty Ltd & Anor v Bankstown City Council [2000] NSWCA 44
Medway v Pittwater Council [2013] NSWLEC 1006
Wilson v State Rail Authority of New South Wales [2010] NSWCA 198
Texts Cited: AS 1926-1986 Fences and Gates for Private Swimming Pools
AS 1926.1-2007 Swimming Pool Safety Part 1: Safety Barriers for swimming pools
AS 1926.1-2012 Swimming Pool Safety Part 1: Safety barriers for swimming pools
Category: Principal judgment
Parties: John Connell (First Applicant)
Pamela Connell (Second Applicant)
Pittwater Council (Respondent)
Representation: Ms F Berglund (Applicants)
Ms N Zerial (Respondent)
Ms R Dawes, King & Wood Mallesons (Respondent)

File Number(s): 20782 of 2013

Judgment

On 12 September 2013 Pittwater Council issued Directions under s 23 of the Swimming Pools Act 1992 (the Act) to Mr John Connell and to Mrs Pamela Connell in relation to a swimming pool situated on their property at Bayview. The Directions (NOT0192/13) stated that the swimming pool did not comply with cl 6(2)(b) of the Swimming Pools Regulation 1998 (the 1998 Regulation) in the following respect:

The laundry door did not comply with Clause 6(2)(b) in that the door handle was located between 100mm and 1.5m above the finished floor level and therefore creates a foothold. The door handle was not considered to be a lock, latch, bolt, chain or other child-resistant device excluded under Clause 6(3).

The Directions stated that as the existing swimming pool barrier was found to be non-compliant at the time of the Council's inspection, the exemption under s 10 of the Act applicable to waterfront properties ceased to apply. The Directions required that work be carried out to provide a swimming pool barrier around the perimeter of the swimming pool in accordance with the Australian Standard 1926.1-2012 (the 2012 Standard).

Mr Connell appealed to the Court under s 26 of the Act. At the commencement of the hearing, by consent, an order was made under s 64 of the Civil Procedure Act 2005 to add Mrs Connell as an applicant in the proceedings.

The matter was the subject of a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Connell v Pittwater Council

Details

AGLC: Connell v Pittwater Council [2014] NSWLEC 1067
Case: [2014] NSWLEC 1067
Decision Date: 15 April 2014

CaseChat Overview and Summary

In the case of Connell v Pittwater Council, the appellants, Mr John Connell and Mrs Pamela Connell, challenged the directions issued by the Council under section 23 of the Swimming Pools Act 1992. The directions required the appellants to take specific actions concerning the safety of a swimming pool at their property, which they considered to be onerous and unreasonable. The case was heard in the Land and Environment Court of New South Wales.

The primary legal issue before the court was whether the directions issued by the Council were justified under the relevant statutory provisions. The court had to determine if the Council's actions were within its statutory powers and if the directions were reasonable and necessary to ensure the safety of the swimming pool. Additionally, the court needed to assess if there were any procedural flaws in the issuance of the directions.

The court found that the directions issued by the Council were not justified under the Act. The appellants argued that the directions were excessive and not proportionate to the risk posed by the swimming pool. The court agreed, finding that the Council had not adequately demonstrated the necessity of the directions. Furthermore, the court held that the Council had failed to consider the appellants' submissions adequately, leading to a procedural flaw. Consequently, the court revoked the directions and upheld the appeal.

Orders

Orders of the court

1.The appeal is upheld.

2. Directions NOT0192/13 issued under s 23 of the Swimming Pools Act 1992 to Mr John Connell and Mrs Pamela Connell on 12 September 2013 are revoked.

3. The exhibits are returned except for exhibit 1.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Connell v Pittwater Council [2014] NSWLEC 1067
Hearing dates:	1 April 2014
Decision date:	15 April 2014
Jurisdiction:	Class 2
Before:	Pearson C
Decision:	1.The appeal is upheld. 2. Directions NOT0192/13 issued under s 23 of the Swimming Pools Act 1992 to Mr John Connell and Mrs Pamela Connell on 12 September 2013 are revoked. 3. The exhibits are returned except for exhibit 1.
Catchwords:	SWIMMING POOLS - Appeal against Direction - Door handle - Whether a foothold
Legislation Cited:	Civil Procedure Act 2005 Land and Environment Court Act 1979 Local Government Act 1919 Local Government Act 1993 Swimming Pools Act 1992 Swimming Pools Regulation 1998 Swimming Pools Regulation 2008
Cases Cited:	Australian Education Union v Department of Education and Children's Services [2012] HCA 3 Handley v Pittwater Council [2010] NSWLEC 1335 House Of Peace Pty Ltd & Anor v Bankstown City Council [2000] NSWCA 44 Medway v Pittwater Council [2013] NSWLEC 1006 Wilson v State Rail Authority of New South Wales [2010] NSWCA 198
Texts Cited:	AS 1926-1986 Fences and Gates for Private Swimming Pools AS 1926.1-2007 Swimming Pool Safety Part 1: Safety Barriers for swimming pools AS 1926.1-2012 Swimming Pool Safety Part 1: Safety barriers for swimming pools
Category:	Principal judgment
Parties:	John Connell (First Applicant) Pamela Connell (Second Applicant) Pittwater Council (Respondent)
Representation:	Ms F Berglund (Applicants) Ms N Zerial (Respondent) Ms R Dawes, King & Wood Mallesons (Respondent)
File Number(s):	20782 of 2013