Medway v Pittwater Council [2014] NSWLEC 1006

Medway v Pittwater Council [2014] NSWLEC 1006

The property did not comply with cl 6 of the 1998 Regulation at the April 2013 inspection and was not shown to have complied at all times with the prescribed standards; it also did not comply with the 2007 Standard or 2012 Standard. The s 9 large property exemption therefore did not apply, and cl 23 of the 2008 Regulation did not apply because the property was not shown to have been an existing complying pool as at 1 September 2008. The applicable requirements were those in Part 2 of the Act and the 2012 Standard. The applicant failed to establish that compliance was impracticable or unreasonable or that current compliance with the 1998 Regulation was no less effective alternative...

Jurisdiction
Australia
Judgment Date
14 January 2014
Procedural Posture
Class 2 Appeals Under S 26 of the Swimming Pools Act 1992 Against a Direction to Comply and Refusal of an Exemption / Two Appeals Heard Together After Council Decisions; Judgment on Merits With Final Chambers Orders Foreshadowed
Outcome
The exemption appeal was proposed to be dismissed. In the direction appeal, the Court found power to direct compliance but foreshadowed amendment of the Direction, particularly concerning the gazebo, with final orders to be made in chambers after the parties considered appropriate terms.
Legal Topics
['direction to Comply' 'exemption From Barrier Requirements' 'child Resistant Barriers' 'large Property Exemption' 'existing Swimming Pool Standards' 'statutory Interpretation']
['land and Environment Law' 'local Government' 'swimming Pool Safety Regulation'] ['direction to Comply' 'exemption From Barrier Requirements' 'child Resistant Barriers' 'large Property Exemption' 'existing Swimming Pool Standards' 'statutory Interpretation']

Case Brief

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Procedural Posture

Class 2 Appeals Under S 26 of the Swimming Pools Act 1992 Against a Direction to Comply and Refusal of an Exemption / Two Appeals Heard Together After Council Decisions; Judgment on Merits With Final Chambers Orders Foreshadowed

Legal Issues

  1. 1 ['Whether the large property exemption in s 9 of the Swimming Pools Act 1992 applied to the swimming pool and spa.' 'Whether cl 23 of the Swimming Pools Regulation 2008 allowed continued compliance with Part 2 of the Swimming Pools Regulation 1998.' 'Whether an exemption should be granted under s 22 of the Swimming Pools Act 1992.' 'Whether the gazebo was a residential building requiring separation from the swimming pool by a child-resistant barrier.' 'Whether the Direction to Comply should be confirmed or varied.']

Ratio Decidendi

The property did not comply with cl 6 of the 1998 Regulation at the April 2013 inspection and was not shown to have complied at all times with the prescribed standards; it also did not comply with the 2007 Standard or 2012 Standard. The s 9 large property exemption therefore did not apply, and cl 23 of the 2008 Regulation did not apply because the property was not shown to have been an existing complying pool as at 1 September 2008. The applicable requirements were those in Part 2 of the Act and the 2012 Standard. The applicant failed to establish that compliance was impracticable or unreasonable or that current compliance with the 1998 Regulation was no less effective alternative...

Court Disposition

The exemption appeal was proposed to be dismissed. In the direction appeal, the Court found power to direct compliance but foreshadowed amendment of the Direction, particularly concerning the gazebo, with final orders to be made in chambers after the parties considered appropriate terms.

Orders

  • ['Appeal No 20802 of 2013: the Court proposed to dismiss the appeal against refusal of an exemption under s 22 of the Swimming Pools Act 1992.' 'Appeal No 20694 of 2013: the Court found the swimming pool did not comply with Part 2 of the Swimming Pools Act 1992 and that a direction to comply was warranted, but terms...