Lismore City Council v Hamshaw (No 2)
[2013] NSWLEC 205
•29 November 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Lismore City Council v Hamshaw (No 2) [2013] NSWLEC 205 Hearing dates: On the papers Decision date: 29 November 2013 Jurisdiction: Class 4 Before: Craig J Decision: Orders as set out at [4]
Catchwords: FINAL ORDERS - directed draft orders to be provided to reflect reasons for decision - no entitlement to file further evidence after delivery of ex tempore judgment - orders made to give effect to findings in ex tempore judgment. Legislation Cited: Swimming pools Act 1992 Cases Cited: Lismore City Council v Hamshaw [2013] NSWLEC 204 Category: Consequential orders Parties: Lismore City Council (Applicant)
Kay Margaret Marie Hamshaw (First respondent)
Hayden Hamshaw (Second respondent)Representation: McCartney Young Lawyers (Applicant)
No appearance (Respondents)
File Number(s): 40395 of 2013
Judgment
On 26 November I delivered judgment in these proceedings, directing that the Council provide to my Associate by 4.00pm today draft short minutes of orders that reflected the findings and determination that I had made in that judgment (Lismore City Council v Hamshaw [2013] NSWLEC 204). The hearing had proceeded ex parte in the circumstance outlined at [3]-[6] of that judgment.
The draft short minutes prepared on behalf of the applicant have now been provided to me. I am therefore in a position to make final orders in these proceedings.
However, there is one matter that does need to be recorded. At the time of providing the draft short minutes to my Associate, the applicant's solicitors also forwarded a further affidavit affirmed on 29 November 2013 by Graeme Bailey, an employee of the applicant whose earlier affidavits I had read prior to the delivery of judgment. As the hearing before me had concluded on 26 November and no leave was given to provide any further evidence, it was inappropriate that this further affidavit be provided for consideration. I have taken no account of its content in formulating the orders that I now make.
For reasons expressed in my principal judgment, I make the following orders:
1. Order pursuant to s 30 of the Swimming Pools Act 1992 that the First Respondent undertake the following work on or to the swimming pool constructed on land being Lot 102 in DP 563084 and known as 9 Taylor Road, Chilcotts Grass ("the Property").
(a) Construct or erect a fence:
(i) to the west of the dwelling erected on the Property so that the fence when constructed separates the dwelling from the pool;
(ii) to the west of the pool so that the fence is constructed on the deck of the pool; and
(iii) to the north of the pool so that the fence is constructed on the deck of the pool,
such fence or fences must be constructed so that it or they attach to any existing fence to the north and south of the pool.
(b) When completed the fence must operate as a child-resistant barrier that separates the entire swimming pool from the dwelling situated on the Property and from any place (whether public or private) adjoining the pool and the Property.
(c) Any gate in the fence that provides access to the pool must be self-closing and hung so that it opens outwards (that is, away from the pool).
(d) Any gap between the underside of the fence and the ground level beneath the fence must be no greater than 100mm. If there is a gap that is greater than 100mm the gap is to be reduced so that it does not exceed 100mm and the surface beneath the fence must be permanent and not easily removed or eroded by a child, animal or weather.
(e) The moveable spa located at the south west corner of the dwelling, under the awning or standing on the patio, must be relocated so that it is adjacent to the pool and within the fenced and enclosed pool area.
(f) All objects including plants, chairs and tables that facilitate climbing and that are located within 900mm of the outside of (or external to ) the pool fence ("the external non climbable zone") must be removed from that location and no objects that facilitate climbing are to be placed in the external non climbable zone at any time.
(g) All objects including plants, chairs and tables that facilitate climbing and that are located within 300mm of the inside of (or internal to) the pool fence ("the internal non climbable zone") must be removed from that location and no objects that facilitate climbing are to be placed in the internal non climbable zone at any time.
2. All work required to be undertaken in accordance with Order 1 must comply with the standards set out in the Australian Standard "AS 1926.1-2012 Swimming Pool Safety Part 1 Barriers for swimming pools" including the fence that must be designed, constructed, installed and maintained in accordance with the requirements of that Standard.
3. The First Respondent must comply with Order 1 within 60 days from the date of this Order.
4. After the expiration of 60 days from the date of service of this order the Applicant may inspect the Property in order to ascertain whether the work required by these orders has been carried out and no notice is required to be given to the First or Second Respondent of the Applicant's intention to enter the Property in order to carry out that inspection.
5. The Respondents must pay the Applicant's costs of these proceedings, as agreed or assessed.
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Decision last updated: 09 December 2013
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