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…