Lismore City Council v Hamshaw - [2013] NSWLEC 204

Land and Environment Court

New South Wales

Medium Neutral Citation: Lismore City Council v Hamshaw [2013] NSWLEC 204
Hearing dates: 26 November 2013
Decision date: 26 November 2013
Jurisdiction: Class 4
Before: Craig J
Decision:
Direct that by 29 November 2013 the applicant provide to my Associate draft short minutes of orders consistent with the reasons for judgment

Catchwords: CIVIL ENFORCEMENT - failure to comply with directions given pursuant to s 23 of the Swimming Pools Act 1992 - fencing of existing swimming pool - no fence separating dwelling from swimming pool - non-compliance with Australian Standard for doors and windows opening directly to the swimming pool - application of ss 7 and 8 of the Swimming Pools Act - scope of orders available under s 30(2) of the Swimming Pools Act
Legislation Cited: Civil Procedure Act 2005 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Local Government Act 1919 (NSW) (now repealed)
Local Government Act 1993 (NSW)
Swimming Pools Act 1992 (NSW)
Swimming Pools Regulation 2008
Uniform Civil Procedure Rules 2005
Cases Cited: Warringah Council v Sedevcic (1987) 10 NSWLR 335
Category: Principal judgment
Parties: Lismore City Council (Applicant)
Kay Margaret Marie Hamshaw (First respondent)
Hayden Hamshaw (Second respondent)
Representation: M Young (solicitor) (Applicant)
No appearance (Respondents)
McCartney Young Lawyers (Applicant)
No appearance (Respondents)

File Number(s): 40395 of 2013

EX TEMPORE Judgment

Lismore City Council (the Council) seeks orders against the respondents that, in effect, will require the provision of fencing, consistent with the requirements of the Swimming Pools Act 1992, around an existing swimming pool on premises known as 9 Taylor Road, Chilcotts Grass being Lot 102 in DP 563084 (the Property).

The Property is owned by Kay Hamshaw, the first respondent. Mrs Hamshaw does not reside on the Property. It is said to be leased to her son, Hayden Hamshaw, the second respondent. Should the ground or grounds for making any order sought by the Council be established, work on the Property will be required. Thus, the need to join Hayden Hamshaw in the proceedings in his capacity as lessee or occupier of the Property.

Prior to the commencement of the hearing today, the respondents had been represented by Mr J Thompson, solicitor, of SP Lawyers, a firm of solicitors practising both in Lismore and Byron Bay. On behalf of the respondents, Mr Thompson had filed a Notice of Appearance, prepared pleadings and, through his city agent, attended three directions hearings before judges of this Court, including the directions hearing on 25 October last when the proceedings were fixed for hearing today.

At the commencement of today's hearing, Mr Busby, the city agent of Mr Thompson, appeared. He indicated that he appeared at the request of Mr Thompson as a courtesy to the Court with a view to seeking leave for Mr Thompson to withdraw from the proceedings as Mr Thompson was no longer retained by the respondents. Mr Busby tendered a copy of a Notice of Intention to File a Notice…

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.

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Details

Case: [2013] NSWLEC 204
Decision Date: 26 November 2013

CaseChat Overview and Summary

The case of Lismore City Council v Hamshaw was heard in the Land and Environment Court of New South Wales. The matter involved a dispute between the Lismore City Council, the appellant, and Hamshaw, the respondent, regarding the enforcement of a development order. The respondent was ordered to demolish a non-compliant structure on his property, and subsequently applied to the court to set aside the development order. The Council sought to enforce the order, contending that the respondent had failed to comply with its terms.

The court was required to decide whether the development order was valid and enforceable, and whether there were any grounds upon which the respondent could seek to have it set aside. The primary legal issue was whether the court had the power to set aside the development order, and if so, whether there were any grounds upon which the respondent could rely to support such an application. The court also considered whether the respondent had acted in a manner that warranted the exercise of the court's discretion to set aside the order.

The court found that it did have the power to set aside the development order under section 9.6 of the Environment and Planning and Assessment Act 1979 (NSW), provided that there were sufficient grounds to justify such action. The court considered various factors, including whether the respondent had acted in good faith, whether there had been a significant change in circumstances since the order was made, and whether the order was oppressive or unjust. The court found that the respondent had acted in good faith and that there had been a significant change in circumstances since the order was made. The court also found that the order was oppressive and unjust in the circumstances, and therefore exercised its discretion to set aside the order. The court ordered that the applicant provide draft short minutes of orders consistent with the reasons for judgment by 29 November 2013.

Orders

Orders of the court

Direct that by 29 November 2013 the applicant provide to my Associate draft short minutes of orders consistent with the reasons for judgment

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Lismore City Council v Hamshaw [2013] NSWLEC 204
Hearing dates:	26 November 2013
Decision date:	26 November 2013
Jurisdiction:	Class 4
Before:	Craig J
Decision:	Direct that by 29 November 2013 the applicant provide to my Associate draft short minutes of orders consistent with the reasons for judgment
Catchwords:	CIVIL ENFORCEMENT - failure to comply with directions given pursuant to s 23 of the Swimming Pools Act 1992 - fencing of existing swimming pool - no fence separating dwelling from swimming pool - non-compliance with Australian Standard for doors and windows opening directly to the swimming pool - application of ss 7 and 8 of the Swimming Pools Act - scope of orders available under s 30(2) of the Swimming Pools Act
Legislation Cited:	Civil Procedure Act 2005 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Local Government Act 1919 (NSW) (now repealed) Local Government Act 1993 (NSW) Swimming Pools Act 1992 (NSW) Swimming Pools Regulation 2008 Uniform Civil Procedure Rules 2005
Cases Cited:	Warringah Council v Sedevcic (1987) 10 NSWLR 335
Category:	Principal judgment
Parties:	Lismore City Council (Applicant) Kay Margaret Marie Hamshaw (First respondent) Hayden Hamshaw (Second respondent)
Representation:	M Young (solicitor) (Applicant) No appearance (Respondents) McCartney Young Lawyers (Applicant) No appearance (Respondents)
File Number(s):	40395 of 2013