Gross v Ku-ring-gai Council [2017] NSWLEC 1457

Gross v Ku-ring-gai Council [2017] NSWLEC 1457

The Court was satisfied, on Mr Bailey's sworn evidence, his statement of evidence, and the Senior Commissioner's observations during the site visit, that the Notice identified clear non-compliances with the swimming pool regulatory regime and that compliance with the Notice was required. The Applicant's concerns about the boundary retaining wall, drainage and works at 15 Hesperus Street did not affect the issue in the appeal, and the Council's expert evidence established that the boundary fence was compliant with pool fencing requirements. Because some items had been resolved and the Council offered additional time for compliance, the Notice was modified to reflect the updated position.

Jurisdiction
Australia
Judgment Date
24 August 2017
Procedural Posture
Class 1 Appeal Against a Notice Issued Under Section 23 of the Swimming Pools Act 1992 / Final Hearing and Orders
Outcome
The appeal is upheld and notice number SPA0210/16 is modified as set out in Attachment A to the judgment.
Legal Topics
['appeal Against Direction' 'child Resistant Barrier' 'swimming Pool Fencing Compliance' 'boundary Fence and Retaining Wall']
['planning and Environment' 'local Government' 'swimming Pool Safety'] ['appeal Against Direction' 'child Resistant Barrier' 'swimming Pool Fencing Compliance' 'boundary Fence and Retaining Wall']

Case Brief

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Procedural Posture

Class 1 Appeal Against a Notice Issued Under Section 23 of the Swimming Pools Act 1992 / Final Hearing and Orders

Legal Issues

  1. 1 ['Whether the Applicant should be required to comply with notice number SPA0210/16 issued by Ku-ring-gai Council under section 23 of the Swimming Pools Act 1992 to ensure the swimming pool child resistant barrier complied with the relevant regulatory regime.' 'Whether the boundary fence and retaining wall between 11 and 15 Hesperus Street needed further examination or affected compliance with swimming pool barrier requirements.' "Whether the Applicant's concerns about drainage, retaining wall works and alleged non-compliance at 15 Hesperus Street were within the scope of the appeal against the notice."]

Ratio Decidendi

The Court was satisfied, on Mr Bailey's sworn evidence, his statement of evidence, and the Senior Commissioner's observations during the site visit, that the Notice identified clear non-compliances with the swimming pool regulatory regime and that compliance with the Notice was required. The Applicant's concerns about the boundary retaining wall, drainage and works at 15 Hesperus Street did not affect the issue in the appeal, and the Council's expert evidence established that the boundary fence was compliant with pool fencing requirements. Because some items had been resolved and the Council offered additional time for compliance, the Notice was modified to reflect the updated position.

Court Disposition

The appeal is upheld and notice number SPA0210/16 is modified as set out in Attachment A to the judgment.

Orders

  • ['The appeal is upheld.' 'Notice number SPA0210/16 issued by the Council under section 23 of the Swimming Pools Act 1992 is modified as set out in the updated notice shown as Attachment "A" to this judgment.' 'The Exhibits, save for Exhibits 1, 3, A and B, are returned.']