Cullen v Pittwater Council

[2012] NSWLEC 1148

Land and Environment Court

New South Wales

Case Title:	Cullen v Pittwater Council
Medium Neutral Citation:	[2012] NSWLEC 1148
Hearing Date(s):	16 May 2012
Decision Date:	16 May 2012
Jurisdiction:	Class 2
Before:	Pearson C
Decision:	(1)The Appeal is upheld. (2)The direction to comply (NOT0012/12) dated 20 February 2012 issued by the Respondent to the Applicant under s 23 of the Swimming Pools Act 1992 in relation to lot 1 DP 612219, 47 Vineyard Street Mona Vale NSW 2103 be varied to require the Applicant to carry out the measures specified in Schedule 2 by 2 August 2012. (3)The exhibits are returned except for exhibit 1.
Catchwords:	Consent orders - Swimming pools - Child resistant barrier - Appeal against direction
Legislation Cited:	Swimming Pools Act 1992 Swimming Pools Regulation 1998 Swimming Pools Regulation 2008
Cases Cited:	Handley v Pittwater Council [2010] NSWLEC 1335
Texts Cited:
Category:	Principal judgment
Parties:	Kevin Gordon Cullen (Applicant) Pittwater Council (Respondent)
Representation
- Counsel:	Counsel Mr R O'Gorman-Hughes (Applicant)
- Solicitors:	Solicitors Mr M Jaku, King and Wood Mallesons (Respondent)
File number(s):	20268 of 2012
Publication Restriction:

EX TEMPORE JUDGMENT

1. On 20 February 2012 Pittwater Council issued a Direction under s 23 of the Swimming Pools Act 1992 (the Act) to Mr Kevin Cullen in relation to a swimming pool on his property at 47 Vineyard Street Mona Vale. The Direction stated that the Council had determined that the requirements of Australian Standard 1926.1-2007 (AS 1926.1-2007) applied to the swimming pool and that there were a number of non-compliances with AS 1926.1-2007.

2. The Council directed Mr Cullen within a period of 30 days from the date of the Direction to comply with works specified in Schedule 2 of the Direction. The Direction informed Mr Cullen of his right of appeal under s 26 of the Swimming Pools Act, and Mr Cullen appealed to the Court pursuant to that provision seeking an order that the direction be revoked.

3. The parties have now reached agreement that the circumstances for the making of the Direction under s 23 of the Swimming Pools Act applied at the time that it was issued, and they agree that the Direction should be complied with. The parties have reached agreement as to an extension of the time required to carry out the work identified in the Direction issued on 20 February 2012, and they are seeking that orders be made to effect that agreement by consent. The task of the Court is to consider whether it is lawful and appropriate to make the orders sought.

4. It is common ground that the pool on Mr Cullen's property was constructed before 1990, and that the child resistant barrier has not been substantially altered or rebuilt. The relevant legislative framework commences with s 7 of the Swimming Pools Act, which requires that the owner of premises on which a swimming pool is situated must ensure that the swimming pool is at all times surrounded by a child resistant barrier. Section 7 refers to standards prescribed by the regulations. The Swimming Pools Regulation 1998 (the 1998 Regulation), which came into force on 1 September 1998, contained cl 5 which identified the relevant standards for the purposes of s 7 of the Act to be those in Australian Standard 1926, which came into effect in 1986 (the 1986 Australian Standard). The Swimming Pools Regulation 2008 (the 2008 Regulation) came into force on 1 September 2008, and cl 5 of that Regulation identifies the relevant requirements for the purposes of s 7 to be those in the Building Code of Australia, which refers to the provisions of AS1926.1-2007 (the 2007 Australian Standard).

5. The parties are agreed that the swimming pool the subject of these proceedings does not comply with the 1986 Australian Standard which was the relevant Standard applied under the 1998 Regulation, in particular:

   - section 2.3: the barrier is less than 1200 mm in height;
   - section 2.4: the ground clearance under the fence exceeded 100 mm;
   - section 2.7: spaces within vertical members of the barrier were greater than 100 mm; and
   - section 2.8: the gate did not self-close; location of latching device incorrect; no shielding on gate; and not a complying type of gate latch.

6. In Handley v Pittwater Council [2010] NSWLEC 1335 I considered the provisions of the Swimming Pools Act and the Regulations, and in particular considered the application of cl 23 of the 2008 Regulation, at [43]-[45]. The conclusion I reached then was that for cl 23 of the 2008 Regulation to apply so that an existing swimming pool could be permitted to comply with Part 2 of the Swimming Pools Act on the basis of the requirements of the 1998 Regulation and the 1986 Australian Standard, rather than the 2008 Regulation and 2007 Australian Standard, the Court had to be satisfied that the swimming pool in fact complied with the requirements of the 1998 Regulation and 1986 Standard.

7. The parties accept that that reasoning applies in the circumstances of this case, and that accordingly compliance with the requirements of the 2007 Australian Standard is required. The parties are agreed that the works as specified in Schedule 2 of the Direction issued on 20 February 2012 are the works required to bring the child resistant barrier into compliance with those requirements.

8. The parties have reached agreement that a period of 90 days from 4 May 2012, which was the date on which they had reached agreement on the substantive outcome, is a reasonable time for Mr Cullen to carry out the work required to achieve compliance.

9. I am satisfied that it is lawful and appropriate to make the orders sought by the parties which confirm the substantive work required but provide additional time for Mr Cullen to undertake that work to achieve compliance.

10. By consent, the Court orders:

    (1)The Appeal is upheld.

    (2)The direction to comply (NOT0012/12) dated 20 February 2012 issued by the Respondent to the Applicant under s 23 of the Swimming Pools Act 1992 in relation to lot 1 DP 612219, 47 Vineyard Street Mona Vale NSW 2103 be varied to require the Applicant to carry out the measures specified in Schedule 2 by 2 August 2012.

    (3)The exhibits are returned except for exhibit 1.

    Linda Pearson
    Commissioner of the Court