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Handley v Pittwater Council

Handley v Pittwater Council

Case [2010] NSWLEC 1335 6 December 2010

Jurisdiction

Statutory Interpretation

Unjust Enrichment

Administrative Discretion

Compliance

Administrative Law

Environmental Law

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Land and Environment Court

of New South Wales

CITATION: Handley v Pittwater Council [2010] NSWLEC 1335

PARTIES:
APPLICANT
Diana Mary Handley
RESPONDENT
Pittwater Council

FILE NUMBER(S): 20573 and 20356 of 2010

CORAM: Pearson C

KEY ISSUES: SWIMMING POOLS :- Child-resistant barrier
Appeal against Direction
Application for exemption

LEGISLATION CITED: Swimming Pools Act 1992
Swimming Pools Regulation 1998
Swimming Pools Regulation 2008
Interpretation Act 1987
Land and Environment Court Act 1979

CASES CITED: Wilson v State Rail Authority of New South Wales [2010] NSWCA 198
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1
Paice v Hill [2009] NSWCA 156
Wacando v Commonwealth (1981) 148 CLR 1
Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 220
Bradley v Commonwealth (1973) 128 CLR 557
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594

DATES OF HEARING: 29 October 2010, 1 November 2010

DATE OF JUDGMENT:
6 December 2010

LEGAL REPRESENTATIVES: APPLICANT
Ms F Berglund
Instructed by Mr P Briggs
Freehills
RESPONDENT
Mr I Hemmings
Instructed by Ms M Astridge
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Pearson

6 December 2010

20356 of 2010 Handley v Pittwater Council
20573 of 2010 Handley v Pittwater Council
JUDGMENT

1 Commissioner: These two appeals relating to a swimming pool at residential premises at 263 Whale Beach Road Whale Beach (Lot 174 DP 15376) (the property) were heard together. Appeal No 20356 of 2010 is an appeal under s26(1)(c) of the Swimming Pools Act 1992 (the Act) from a Direction to Comply issued by the respondent Council under s23(1) of the Act on 19 April 2010. Appeal No 20573 of 2010 is an appeal under s26(1)(a) of the Act from the Council’s decision to refuse to grant an exemption under s22 of the Act.

Background

2 The property is on the eastern side of Whale Beach Road, and has a two storey dwelling house. The upper level of the dwelling is divided into two residences, and the applicant is the owner of the residence on the southern side.

3 The swimming pool is located on the ground level of the dwelling, and was constructed some time before August 1967. In 1991 the owners obtained a development consent and a building approval from Warringah Shire Council (the 1991 Approvals), and in 1991-1992 demolished the former house and built the present two storey dual occupancy residence.

4 There is a deck with balustrade running along the eastern side of the first level of the residence above the pool area. On 30 October 1997 the Council approved the widening of the timber balcony by 1m (the 1997 Approval). There is a pool gate located at the northern end of the swimming pool and a flight of stairs leading from the swimming…

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 Handley v Pittwater Council

Details

AGLC: Handley v Pittwater Council [2010] NSWLEC 1335
Case: [2010] NSWLEC 1335
Decision Date: 6 December 2010

CaseChat Overview and Summary

In Handley v Pittwater Council, the Land and Environment Court of New South Wales considered appeals against a Direction to Comply and a refusal to grant an exemption under the Swimming Pools Act 1992. Diana Mary Handley, the owner of a residential property with a swimming pool, challenged the Council’s Direction to comply with the Australian Standard 1926.1-2007 and the refusal to grant an exemption from certain requirements of the Act. The key issues were whether the Direction was valid and whether an exemption should have been granted. The applicant argued that the 2008 Regulation permitted reliance on the 1986 Standard, while the Council argued that the 2007 Standard applied. The Court found that cl23 of the 2008 Regulation permitted compliance with the 1986 Standard only if the swimming pool complied with the 1986 Standard before 1 September 2008, which was not the case here. The Court also found that neither s22(1)(a) nor s22(1)(b) of the Act was satisfied, so there was no basis for granting an exemption. The Court concluded that the Direction requiring compliance with the 2007 Standard was appropriate. The Court proposed to dismiss the appeal against the exemption and to make directions in consultation with the parties for the appropriate orders in the Direction appeal.

Orders