Handley v Pittwater Council [2010] NSWLEC 1335

Handley v Pittwater Council [2010] NSWLEC 1335

Clause 23 of the 2008 Regulation only allows reliance on older standards where the pool complied with them as at 1 September 2008. The applicant's pool did not comply with the 1986 Standard in several respects; thus, the current standard is the 2007 Standard, which requires the balustrade to be 1200mm high. No grounds exist for an exemption under s22 of the Act. The Direction requiring compliance with the 2007 Standard is valid and should be confirmed.

Parties
Applicant: Diana Mary Handley; Respondent: Pittwater Council
Jurisdiction
Australia
Judgment Date
06 December 2010
Procedural Posture
Appeal / Judgment
Outcome
Appeals dismissed
Legal Topics
Swimming Pools Compliance, Child Resistant Barriers, Australian Standards Compliance, Interpretation of Regulations, Exemptions Under Swimming Pools Act, Building Approvals
Environmental Law Building and Construction Law Local Government Law Swimming Pools Compliance Child Resistant Barriers Australian Standards Compliance Interpretation of Regulations Exemptions Under Swimming Pools Act +1 more

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Parties

Diana Mary Handley

Applicant

Pittwater Council

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether clause 23 of the Swimming Pools Regulation 2008 enables compliance with the 1986 Standard for pools built before 1 Sept 2008
  2. 2 Whether the pool fencing and barriers comply with the relevant standard
  3. 3 Whether an exemption under s22 Swimming Pools Act 1992 should be granted due to impracticability or the existence of no less effective alternative provision

Ratio Decidendi

Clause 23 of the 2008 Regulation only allows reliance on older standards where the pool complied with them as at 1 September 2008. The applicant's pool did not comply with the 1986 Standard in several respects; thus, the current standard is the 2007 Standard, which requires the balustrade to be 1200mm high. No grounds exist for an exemption under s22 of the Act. The Direction requiring compliance with the 2007 Standard is valid and should be confirmed.

Court Disposition

Appeals dismissed