Fairfield City Council v Gray

[2018] NSWLEC 81

Land and Environment Court

New South Wales

Medium Neutral Citation:	Fairfield City Council v Gray [2018] NSWLEC 81
Hearing dates:	29 May 2018
Date of orders:	29 May 2018
Decision date:	29 May 2018
Jurisdiction:	Class 4
Before:	Moore J
Decision:	Orders at [15]
Catchwords:	SWIMMING POOL - non-compliant fencing - direction given under the Swimming Pools Act 1992 to rectify non-compliances - direction not complied with - order sought to require compliance - order made COSTS - costs sought for proceedings - costs not appropriate to be ordered for such portion of the proceeding relating to any invalid emergency order - costs ordered with respect to proceedings founded on valid direction made under the Swimming Pools Act 1992
Legislation Cited:	Land and Environment Court Act 1979, s 23 Local Government Act 1993, s 124 Swimming Pools Act 1992, s 23
Category:	Principal judgment
Parties:	Fairfield City Council (Applicant) Christopher John Gray (Defendant)
Representation:	Counsel: Mr A J J Thompson, solicitor (Applicant) No appearance (Defendant)   Solicitors: Ritchie & Castellan (Applicant)
File Number(s):	25512 of 2018
Publication restriction:	No

EXTEMPORE Judgment

1. HIS HONOUR: The Swimming Pools Act 1992 (the Swimming Pools Act) contains a variety of provisions that are designed to act as, particularly, child safety provisions about perimeter boundaries of swimming pools. Local Councils are given the responsibility for ensuring compliance with the relevant provisions of the Swimming Pools Act that relate to the pool of the relevant age, there being differing standards that potentially apply in differing circumstances to swimming pools.

2. In these proceedings, Mr Reuben Sinai, a building surveyor employed by Fairfield City Council (the Council), who is an authorised officer of that Council, has undertaken an inspection of the swimming pool at 21 Housman Street, Wetherill Park and has noted a number of non‑compliances of that swimming pool with the child safety provisions of the Swimming Pools Act.

3. On 20 September 2017, Mr Sinai inspected the swimming pool at 21 Housman Street and sent a letter and Direction pursuant to s 23 of the Swimming Pools Act requiring compliance with a number of matters that are set out in that direction. A copy of that direction is in evidence before me as an annexure to the affidavit of Reuben Sinai, sworn 26 April 2018.

4. There have been a number of following inspections undertaken on the property. The third was on 28 November 2017, at which time Mr Sinai deposes that the was unable to perceive any change in the non-compliances which had been observed at an earlier follow-up inspection on 2 November 2017.

5. On 6 December 2017, Mr Sinai purported to serve an emergency order, pursuant to s 124 of the Local Government Act 1993 (the Local Government Act). As a result of matters I have raised with Mr Thompson, solicitor appearing for the Council before me today, the question of non-compliance with the emergency order, a matter which had been pleaded in the first element of the relief claimed in the Summons filed on 24 January 2018, is no longer pressed and it is unnecessary for me to deal with that emergency order.

6. However, pursuant to the Summons that the Council filed on 24 January 2018, the second element of the relief is that Mr Christopher Gray (the Defendant) be required to comply with the terms of the direction that was given on 20 September 2017. Mr Sinai’s affidavit discloses that, on 19 March 2018, he carried out a further inspection at 21 Housman Street and observed that there had been some compliance with the direction. His affidavit also deposes that the Defendant was present on that occasion and that Mr Sinai explained to the Defendant what non-compliances remained to be addressed.

7. The Summons came before the Court on the first occasion on 9 March 2018 and, again, on 23 March before Robson J as the List Judge. On each of those occasions, the Defendant appeared in person. He was present on 23 March 2018 when Robson J listed the matter for further directions on Friday 11 May 2018.

8. On Friday 11 May 2018, Mr Thompson appeared before me as the List Judge on behalf of the Council but there was no appearance for the Defendant. On that occasion, I made directions - including sending Mr Thompson to the Registrar to get a hearing date, the Registrar allocating 29 May 2018 for that purpose. During the course of the directions hearing before me, I expressly directed that the Defendant be served with a copy of the directions and notified as part of that process that the matter was set down for hearing on 29 May 2018.

9. I have been provided with an affidavit of Nicole Ann Townsend dated 29 May 2018 which has been read in these proceedings. Ms Townsend, who is an employee of the Council’s solicitors, attests to the fact that on 14 May 2018 she sent an e-mail to the Defendant at his e-mail address, attaching a copy of a letter dated 14 May 2018. The letter did two things:

1. First, it attached a copy of the orders that were made by me on 11 May 2018, and

2. It then included a paragraph in the following terms:

You will be required to attend the Land and Environment Court at 10.00 am on 29 May 2018, failing which to attend the Court the matter will be dealt with in your absence.

10. Ms Townsend deposes that that letter, in addition to being transmitted by e‑mail, was also posted to the Defendant.

11. Mr Thompson has taken me through the compliance reports that were attached to Mr Sinai’s affidavit, particularly the compliance report on 19 March 2018, which details the various outstanding non-compliances with the requirements of the Swimming Pools Act arising from the failure of the Defendant to comply with the direction given on 20 September 2017.

12. I have also had evidence this morning given orally by Mr Davies, an employee of the Council, that, as a result of his further inspection of the property undertaken on 28 May 2018, the non-compliances observed by Mr Sinai on 19 March 2018 remain unaddressed.

13. I am satisfied, as a consequence of that material, that it is appropriate that I make orders to require the Defendant to address those non-compliances. It is appropriate in doing so for me to use the power given to me by s 23 of the Land and Environment Court Act 1979 to make those orders in specific terms so that there is an unequivocal requirement (by incorporation of Mr Sinai’s inspection report of 19 March 2018) as to what is required of the Defendant and also to set a specific timetable for compliance.

14. The Council also seeks that the Defendant pay the Council’s costs. It is appropriate that I make such an order, but that such an order is to be confined to those costs which are in relation to the direction of 20 September 2017 and action to seek compliance with that direction. I do not consider it appropriate to make such an order with respect to any costs which may have been incurred with respect to the emergency order dated 6 December 2017 which, for reasons that I set out on the transcript of the proceedings, I am satisfied was one that was not validly made.

15. It therefore follows that I make the following orders:

1. Pursuant to s 23 of the Land and Environment Court Act 1979, Christopher John Gray is to carry out the works necessary to comply with the direction pursuant to s 23 of the Swimming Pools Act 1992 dated 20 September 1017 to the extent that the report of Mr Reuben Sinai’s inspection carried out on 19 March 2018 (a copy of which is appended to these orders) disclosed continuing non‑compliance with the direction;

2. Order (1) is to be complied with prior to the expiry of 31 days after the date of these orders - that is by 5.00 pm on Friday 29 June 2019; and

3. The Defendant is to pay the Council’s costs as agreed or assessed of those elements of these proceedings relating to the enforcement of the direction issued on 20 September 2017.

Sinai inspection report - 19 Mar 18 - colour (9.00 MB, pdf)

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Decision last updated: 30 May 2018