Lismore City Council v Ross [2023] NSWLEC 29

Land and Environment Court New South Wales

Medium Neutral Citation: Lismore City Council v Ross [2023] NSWLEC 29 Hearing dates: 14 March 2023 Date of orders: 15 March 2023 Decision date: 14 March 2023 Jurisdiction: Class 4 Before: Moore J Decision: See orders in Annexure A Catchwords: CIVIL ENFORCEMENT ‑ swimming pool fence significantly non‑compliant with the requirements of Swimming Pools Act 1992 and its regulations - property significantly neglected ‑ pool fence not childproof ‑ risk to public safety ‑ in 2021, Council orders rectification of defective swimming pool safety fence ‑ property owners failed to comply ‑ in 2022, Council commences civil enforcement action ‑ failure to rectify fencing in response to the commencement of civil enforcement action ‑ Council seeks orders for compliance ‑ Council also seeks substituted performance order to permit filling in of swimming pool if fencing not rectified by owners ‑ no appearance by owners at any interlocutory hearing ‑ substituted service orders made ‑ no appearance by owners at final hearing ‑ inspection of property on day of final hearing ‑ photographs taken and tendered ‑ oral evidence by telephone from inspecting officer ‑ photographs disclose unsafe nature of fencing ‑ photographs show property unkempt and vegetation which would permit climbing and access to pool area even if compliant fencing installed ‑ appropriate to order owners to install compliant fencing and remove vegetation within nominated time period ‑ appropriate to make substituted performance order to permit filling in of pool if continuing non‑compliance ‑ orders made COSTS ‑ costs conventionally follow the event ‑ no reason to depart from conventional position ‑ owners ordered to pay Council's costs of the proceedings Legislation Cited: Civil Procedure Act of 2005, s 98(1) Dividing Fences Act 1991 Swimming Pools Act 1992, s 23 Category: Principal judgment Parties: Lismore City Council (Applicant) Ronald John Ross (First Respondent) Margaret Joy Ross (Second Respondent) Representation: Counsel: Mr Michael Young, solicitor (Applicant)