Doyle v Hunters Hill Council [2020] NSWLEC 1551

Land and Environment Court New South Wales

Medium Neutral Citation: Doyle v Hunters Hill Council [2020] NSWLEC 1551 Hearing dates: Conciliation Conference on 3 November 2020 Date of orders: 11 November 2020 Decision date: 11 November 2020 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders: (1) The appeal is upheld. (2) The terms of Development Control Order No. 11 issued 28 January 2020 by Hunters Hill Council, pursuant to section 9.34 of the Environmental Planning and Assessment Act 1979 are modified as set out at Annexure "A". The previous terms of the Development Control Order No 11 are not pursued. Catchwords: DEVELOPMENT CONTROL ORDERS – fence – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Swimming Pools Act 1992 Swimming Pools Regulation 2018 Texts Cited: Australian Standard: Swimming pool safety. Part 1: Safety barriers for swimming pools AS 1926.1—2007 Category: Principal judgment Parties: Marianne Doyle (Applicant) Hunters Hill Council (Respondent) Representation: Counsel: M Doyle (Self Represented) (Applicant) J Cole (Solicitor) (Respondent)

Solicitors: HWL Ebsworth Lawyers (Respondent) File Number(s): 20/59337 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against a Development Control Order made by the Hunters Hill Council (hereafter the Council) as it relates to the erection of a fence and unapproved fill on Lot 2 DP 971451, also known as 28 Mary Street, Hunters Hill (hereafter the site). 2. The Council issued the Development Control Order No. 11 (the Order) on 28 January 2020 for non-compliance with existing conditions of consent to erect a fence to 1.8 m height from natural ground level along the site's boundary to Gladesville Road. 3. This Class 1 appeal is made under s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the order relating to the site. The order requires compliance works consistent with an approved consent, identified as No. 11 in Schedule 5, Part 1 of the EPA Act. 4. The Court agreed to the parties' request for a conciliation conference, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 3 November 2020, initially onsite and then by MS Teams. No objectors were heard at the conciliation, although the Court was provided with written submissions from residents regarding the works the subject of the order. 5. Based on the modified orders, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The building work, the subject of the Order, is agreed by the parties as not being in accordance with the approved plans and conditions of Development Consent DA2016/1113, although must be considered against the subsequently modified consent, approved in March 2019 to relocate the pool closer to the boundary. The parties agree that based on the approved modification, the Court has power to amend the Order as sought by the parties. 6. The parties agree that the contentions of Council have been considered and are either resolved or not pursued for those that are in conflict with the achievement of (pool) safety as it relates to the relocated pool. The parties have also considered the issues raised by residents. The decision of the parties is for the Court to modify the (Development Control) Order. The parties agree that the terms of the Order are capable of being complied within the time frame identified. 7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 8.18(4)(b) of the EPA Act, to modify the orders, as described in Annexure 'A'. 8. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, as consistency with the: Swimming Pools Act 1992 (Swimming Act); Swimming Pools Regulation 2018 (Swimming Reg); and Australian Standard: Swimming pool safety. Part 1: Safety barriers for swimming pools AS 1926.1—2007 (AS 1926.1). 9. The parties agree that the requirements of the Swimming Act and the provisions of the Swimming Reg are satisfied by the proposed terms of the orders. Specifically, the requirements of s 7 of the Swimming Act requires the provision of a child-resistant barrier around an outdoor pool, which as it relates to the Order is focused on the fencing in proximity to the boundary with Gladesville Road. The other sides of the child-resistant barrier around the pool on the site are not in contest between the parties, and advised to the Court to be compliant with the Swimming Act. 10. Pursuant to s 7(1)(b), a child-resistant barrier must be constructed consistent with the specifications of the Swimming Reg, which also refer to AS 1926.1. The parties agree that the fence which is the subject of the appeal, is offset from the boundary of the site, must be made unclimbable at a height of 1.8m across the length of the pool, from both the inside and outside of the site, to ensure child safety. 11. By the making of the orders, the parties agree that the relevant requirements of the Swimming Act are satisfied and that the Court should not be constrained to modify the orders as amended. 12. The amended terms of the orders have been considered in the context of the site and other relevant legislative provisions. The parties agree that the contentions raised by Council and all jurisdictional requirements are resolved as required, to the satisfaction of the parties. 13. Based on the information before me, as provided by the parties in the conciliation, I am satisfied that there are no jurisdictional impediments to the modification of the Order (11), pursuant to s 9.34(1)(a) of the EPA Act. 14. 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. 15. The Court orders: 1. The appeal is upheld. 2. The terms of Development Control Order No. 11 issued 28 January 2020 by Hunters Hill Council, pursuant to section 9.34 of the Environmental Planning and Assessment Act 1979 are modified as set out at Annexure "A". The previous terms of the Development Control Order No 11 are not pursued. ………………………… Sarah Bish Commissioner of the Court Annexure A (9965, pdf)