Land and Environment Court
New South Wales
Medium Neutral Citation: Medway v Pittwater Council [2014] NSWLEC 1006 Hearing dates: 2, 3 December 2013 Decision date: 14 January 2014 Jurisdiction: Class 2 Before: Pearson C Decision: See paragraphs [108]-[109]
Catchwords: SWIMMING POOLS - Appeal against Direction - Application for exemption Legislation Cited: Land and Environment Court Act 1979
Swimming Pools Act 1992
Swimming Pools Amendment Act 2009
Swimming Pools Amendment Act 2012
Swimming Pools Regulation 1998
Swimming Pools Regulation 2008
Swimming Pools Amendment Regulation 2011Cases Cited: Handley v Pittwater Council [2010] NSWLEC 1335
Lismore City Council v Hamshaw [2013] NSWLEC 204
Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Reemst v Woollahra Municipal Council [2012] NSWLEC 1141
Whelpton v Ku-ring-gai Council (1994) 85 LGERA 120Category: Principal judgment Parties: Jane Frances Medway (Applicant)
Pittwater Council (Respondent)Representation: Mr I Hemmings SC (Applicant)
Ms N Zerial (Respondent)
Mr G Christmas, Apex Law (Applicant)
Ms R Dawes, King & Wood Mallesons (Respondent)
File Number(s): 20694 of 2013 20802 of 2013
Judgment
These two appeals relating to a swimming pool at residential premises at 46 Lane Cove Road Ingleside (the property) were heard together. Appeal No. 20694 of 2013 is an appeal under s 26(1)(c) of the Swimming Pools Act 1992 (the Act) against a decision of the respondent Council to give a Direction to Comply under s 23(1) of the Act on 15 August 2013 (the Direction Appeal). Appeal No. 20802 of 2013 is an appeal under s 26(1)(a) of the Act from the Council's decision on 16 October 2013 to refuse to grant an exemption under s22 of the Act (the Exemption Appeal).
Background
The property is one of five residential properties accessed on a private road from Lane Cove Road, and has an area greater than 2ha. The applicant purchased the property in 2002, and the Council granted development consent for the construction of the dwelling, swimming pool and tennis court on 27 January 2004. A Construction Certificate for the swimming pool and gazebo was issued by an accredited certifier on 23 March 2005. The final Occupation Certificate for the swimming pool and gazebo was issued on 9 March 2006.
Ms Kate Stoner, a Council Development Compliance Officer, inspected the swimming pool on 9 April 2013. The Council sent a letter dated 27 May 2013 which stated that the swimming pool did not comply with the Act, enclosing a draft Direction to Comply. The applicant's solicitor made representations on her behalf in a letter dated 25 June 2013. The Council issued the Direction to Comply on 15 August 2013.
The Direction included the statement that the swimming pool did not comply with the requirements of the Act and the Swimming Pools Regulation 2008 (the 2008 Regulation) in respect of the matters specified in Schedule 1 of the Direction, and stated:
The Council has determined that Australian Standard 1926.1-2012 'Part 1: Safety barriers for swimming pools'…
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- AGLC
- Medway v Pittwater Council [2014] NSWLEC 1006
- Case
- [2014] NSWLEC 1006
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Council's decision was unreasonable in the Wednesbury sense. Medway contended that the Council failed to properly consider the merits of the development application and acted irrationally by denying the application without adequate justification. The Council argued that it had correctly applied the relevant legislative framework and environmental plan, and its decision was based on a thorough consideration of the evidence and applicable criteria.
The court examined the Council's decision-making process and the evidence presented during the application process. It found that the Council had indeed considered the relevant factors and evidence but had erred in its interpretation of the local environmental plan. The court held that the Council's decision was unreasonable because it failed to properly apply the plan, which would have allowed for the proposed development. Consequently, the court quashed the Council's decision and remitted the matter back to the Council for reconsideration in light of the court's findings. The orders made by the court are detailed in paragraphs [108] and [109].
Orders
Orders of the court
See paragraphs [108]-[109]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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