PTHT Pty Limited v Mid-Coast Council

[2021] NSWLEC 1483

Land and Environment Court

New South Wales

Medium Neutral Citation:

PTHT Pty Limited v Mid-Coast Council [2021] NSWLEC 1483

Hearing dates:

Conciliation conference on 9 August 2021

Date of orders:

24 August 2021

Decision date:

24 August 2021

Jurisdiction:

Class 2

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The application for an exemption for the identified swimming pool from the requirements of section 7(a) and (b) of the Swimming Pools Act 1992 at Lot 1 SP 82729, 1/88 Boomerang Drive, Boomerang Beach NSW is approved subject to the conditions contained in Annexure A.

Catchwords:

APPEAL – exemption for a swimming pool – wall of pool 1.2m above ground – conciliation conference – agreement between the parties – orders

Legislation Cited:

Land and Environment Court Act 1979 s 34

Swimming Pools Act 1922 ss 7, 22, 26

Category:

Principal judgment

Parties:

PTHT Pty Limited (Applicant)
Mid-Coast Council (Respondent)

Representation:

Counsel:
A McKelvey (Solicitor) (Applicant)
M Caban (Solicitor) (Respondent)

Solicitors:
Sparke Helmore (Applicant)
Local Government Legal (Respondent)

File Number(s):

2021/118068

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns an application by PTHT Pty Ltd for an exemption under s 22 of the Swimming Pools Act 1992 (SP Act), from the requirements regarding pool fencing under s 7 of the SP Act for a swimming pool at 1/88 Boomerang Drive, Boomerang Beach. The application was refused by Mid-Coast Council on 1 April 2021. The applicant appeals against that decision, pursuant to s 26 of the SP Act. In exercising the functions of the local authority on the appeal, the Court has the power to determine the exemption application pursuant to s 22 of the SP Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 9 August 2021. I presided over the conciliation conference.

3. Following the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the grant of the exemption, subject to conditions, pursuant to s 22(2) of the SP Act. The signed agreement containing the terms of the decision was filed on 18 August 2021, and is supported by a document outlining the jurisdictional prerequisites to the exercise of the Court’s power to grant the exemption.

4. As the presiding Commissioner, I am satisfied that the decision to grant the exemption subject to conditions is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The subject swimming pool is an outdoor swimming pool situated on premises on which a residential building is located, and is therefore a swimming pool to which the SP Act applies.

• An application for an exemption under s 22 of the SP Act was made, as required by s 22(1).

• The Council is satisfied, and I accept, that the pool wall, which has a height of 1.2m from the ground, a width of 200mm and is of concrete construction without footholds, forms a barrier that is no less effective than the requirements of Part 2 of the Act for restricting access to the swimming pool, and therefore meets the requirements under s 22(1)(b) of the SP Act.

• The conditions in Annexure A are appropriate to ensure that effective provision is made for restricting access to the swimming pool, as they ensure that there will be no climbable objects within an exclusion zone of 900mm adjacent to the pool wall.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the discretionary matters that arise for consideration in determining the exemption application.

7. The Court orders that:

1. The appeal is upheld.

2. The application for an exemption for the identified swimming pool from the requirements of section 7(a) and (b) of the Swimming Pools Act 1992 at Lot 1 SP 82729, 1/88 Boomerang Drive, Boomerang Beach NSW is approved subject to the conditions contained in Annexure A.

……………………

J Gray

Commissioner of the Court

Annexure A (94994, pdf)

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Decision last updated: 24 August 2021