Medway v Pittwater Council - [2014] NSWLEC 1006

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 2011
Cases 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 120
Category: 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'…

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 Medway v Pittwater Council

Details

AGLC: Medway v Pittwater Council [2014] NSWLEC 1006
Case: [2014] NSWLEC 1006
Decision Date: 14 January 2014

CaseChat Overview and Summary

Medway and Pittwater Council were involved in a legal dispute that reached the Supreme Court of New South Wales. Medway, the appellant, contested the Council's decision to deny a development application related to the construction of a residential building. The Council, the respondent, defended its decision, asserting that the proposed development did not align with the approved local environmental plan. Medway argued that the Council's decision was unreasonable, while the Council maintained that its decision was lawful and appropriately considered all relevant factors.

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

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:	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 2011
Cases 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 120
Category:	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