Watson v Georges River Council

[2024] NSWLEC 1322

Land and Environment Court

New South Wales

Medium Neutral Citation:

Watson v Georges River Council [2024] NSWLEC 1322

Hearing dates:

Conciliation conference on 17 May 2024

Date of orders:

14 June 2024

Decision date:

14 June 2024

Jurisdiction:

Class 2

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) The Direction given to the Applicant by the Respondent on 21 March 2024 pursuant to section 23 of the Swimming Pools Act 1993 is revoked.

(3) The Direction given to the Applicant by the Respondent on 3 April 2024 pursuant to section 23 of the Swimming Pools Act 1993 is revoked.

Catchwords:

DEVELOPMENT APPEAL – direction – swimming pool – conciliation conference – agreement between the parties - orders

Legislation Cited:

Land and Environmental Court Act 1979, s 34

Swimming Pools Act 1992, ss 23, 26

Category:

Principal judgment

Parties:

Suzanne Watson (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
T Watson (Agent) (Applicant)
S Lasker (Solicitor) (Respondent)

Solicitors:
Georges River Council (Respondent)

File Number(s):

2024/139478

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is a Class 2 appeal pursuant to s 26 of the Swimming Pools Act 1992 (Swimming Pools Act) against two directions from Georges River Council to rectify an inadequate child resistant pool barrier at 115A Kyle Parade Kyle Bay, legally known as Lot 144 DP 609368.

2. Council issued two directions on 21 March 2024 and 2 April 2024 to rectify a pool barrier pursuant to 23 of the Swimming Pools Act 1992 (Directions).

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 17 May 2024. I have presided over the conciliation conference.

4. In discussions leading up to and at the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, as filed to the Court 16 May 2024 and amended on 30 May 2024. This decision involved the Court upholding the appeal and revoking the Directions.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

Jurisdictional Prerequisites

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, as set out below.

7. Pursuant to s 26(d) of the Swimming Pools Act, the Court has power to hear an appeal of a direction issued under s 23.

8. The appeal was filed on 15 April 2024, within 28 days in accordance with s 26(2) from the date of the first direction.

9. I accept the parties’ agreement that the Directions can be revoked.

Conclusion

10. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

11. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

12. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

13. The Court notes that the Respondent has agreed to pay to the Applicant the amount of $1,104.

Orders:

14. The Court orders:

1. The appeal is upheld.

2. The Direction given to the Applicant by the Respondent on 21 March 2024 pursuant to section 23 of the Swimming Pools Act 1993 is revoked.

3. The Direction given to the Applicant by the Respondent on 3 April 2024 pursuant to section 23 of the Swimming Pools Act 1993 is revoked.

S Porter

Commissioner of the Court

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