Garnsey v The Hills Shire Council

[2018] NSWLEC 1452

Land and Environment Court

New South Wales

Medium Neutral Citation:	Garnsey v The Hills Shire Council [2018] NSWLEC 1452
Hearing dates:	Conciliation conference on 21 August 2018
Date of orders:	24 August 2018
Decision date:	24 August 2018
Jurisdiction:	Class 2
Before:	Gray C
Decision:	See [5] below
Catchwords:	Council direction - Swimming Pool - conciliation conference - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979 Swimming Pools Act 1992
Category:	Principal judgment
Parties:	Robert Garnsey (Applicant) The Hills Shire Council (Respondent)
Representation:	Solicitor: K Law, Matthews Folbigg Pty Ltd (Respondent) Other: R Garnsey (self-represented) (Applicant)
File Number(s):	2018/96903
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Robert Garnsey against a Swimming Pool Direction issued by The Hills Shire Council with respect to the swimming pool situated at 22 Lisa Crescent, Castle Hill (Lot 58 DP258475).

2. In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act. As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

3. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

4. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

5. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The Appeal is upheld;

2. The Pool Direction dated 1 March 2018 issued pursuant to s 23 of the Swimming Pools Act 1992 (NSW) (the Direction) is modified with respect to the following:-

1. As to the work required to be carried out to comply with the Direction:­-

The words "The barbeque located within the pool area is to be removed or alternatively reconfigure the location of the pool fencing so that the BBQ area no longer forms part of the pool area" is deleted and replaced with:-

A. “The barbeque located within the pool area is to be made inoperable by the carrying out of the following works:-

• Removal of all four burners and associated hot plates/grills

• Cut the back of the rear pipework of the temperature on/off dials so as to render them inoperable

• Disconnect the gas line and gas bottle and at the point where the gas line connects to the BBQ, fill the service openings with silicon or other similar substance

2. As to the Period for Compliance:-

• Replace the date “30 March 2018” with the words “28 days from the date the orders are made by the Court”

3. No order as to costs.

……………………….

Commissioner Gray