Johnson v Kiama Municipal Council

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Johnson v Kiama Municipal Council [2021] NSWLEC 1036

Hearing dates:

28 October 2020

Date of orders:

21 January 2021

Decision date:

21 January 2021

Jurisdiction:

Class 2

Before:

Espinosa C

Decision:

The Court orders that the appeal is dismissed.

Catchwords:

APPEAL – Swimming Pool child resistant barrier exemption – pool constructed prior to 1990 – impracticable or unreasonable – physical nature of the premises – orders

Legislation Cited:

Interpretation Act 1987

Land and Environment Court Act 1979

Swimming Pools Act 1992

Swimming Pools Regulation 1998

Swimming Pools Regulation 2018

Cases Cited:

Autore v Waverley Council [2015] NSWLEC 1350

Handley v Pittwater Council [2010] NSWLEC 1335

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

Medway v Pittwater Council [2014] NSWLEC 1006

Nikolaidis v Northern Beaches Council [2017] NSWLEC 1439

Project Blue Sky Inc v Australian Broadcasting Authority (1989) 194 CLR 355; [1998] HCA 28

Reemst v Woollahra Municipal Council [2012] NSWLEC 1141

Texts Cited:

Swimming Pool Safety Australian Standard 1926.1-2012

Category:

Principal judgment

Parties:

Marjorie Johnson (Applicant)
Kiama Municipal Council (Respondent)

Representation:

Counsel:
C Johnson (Agent) (Applicant)
A Sinclair (Solicitor) (Respondent)

Solicitors:
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2019/261846

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 2 Miscellaneous Appeal pursuant to s 18 of the Land and Environment Court Act 1979 (LEC Act) to the Court under s 26 of the Swimming Pools Act 1992 (the Act) against the refusal of Kiama Municipal Council on 26 July 2019 to grant an exemption of the identified swimming pool barrier from the requirements of s 7 of the Act in relation to NSW Swimming Pool Register Number 1abae392 (the Pool) at 579 Jamberoo Road, Jamberoo, legally described as Lot 1 DP 198196 (the Site).

2. The parties and the Court inspected the Site in the morning prior to commencing the hearing at Wollongong Local Court. The Pool was inspected and there is no child resistant barrier separating the swimming pool from the residential building. There were multiple string lines located around the swimming pool of various colours however no schedule or legend was provided to the court to indicate what these coloured lines represented. The Applicant’s agent advised orally that they were placed to show the location of a number of options or proposals discussed or put by the Respondent during the s 34 conciliation conference and some represented options or suggestions contained in the Expert Report of Matthew Allard, Development Officer for the Respondent filed 8 May 2020. There was also a wire mesh fence set up diagonally from the corner of the dwelling to the shrubbery and a ‘mock up’ of a gate made of what appeared to be bamboo or similar situated at the bottom of the stairs that lead to the door to the family or living room.

3. The Applicant, the owner of the Site, is over 90 years old and lives independently on her own and is represented in…