[2001] ANZ ConvR 486 (2001) NSW ConvR 55-970 Reported Decision : [2001] NSWSC 202 (2001) 10 BPR 18, 713 [2001] ACL Rep 355 NSW 18 New South Wales Supreme Court CITATION : Paul Lederer & Anor v John Bowie-Wilson & Anor [2001] NSWSC 202 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1562 of 2001 HEARING DATE(S) : 16 March 2001 JUDGMENT DATE : 27 March 2001 Paul Lederer (First Plaintiff) PARTIES : Eva Marie Lederer (Second Plaintiff) John Bowie-Wilson (First Defendant) Sally Elizabeth Bowie-Wilson (Second Defendant) JUDGMENT OF : Bergin J COUNSEL : BJ Preston SC/F Kunc (Plaintiffs) NC Hutley SC (Defendants) SOLICITORS : Landerer & Co (Plaintiffs) Corrs Chambers Westgarth (Defendants) CATCHWORDS : Interpretation of restrictive covenant - Whether Jacuzzi is a swimming pool. LEGISLATION CITED : Home Building Act 1989 Swimming Pools Act 1992 (NSW) Bowie-Wilson & Anor v Lederer & Anor NSWSC, Young J, unreported 20 May 1999 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 CASES CITED : Perth Shire v O'Keefe (1964) 110 CLR 529 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 [Easements and Restrictive Covenants in Australia 2nd Edition, Bradbrook & Neave, Butterworths 2000] DECISION : Jacuzzi not prohibited by restrictive covenant. Summons dismissed. THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BERGIN J DATE: TUESDAY 27 MARCH 2001 1562 of 2001 - PAUL LEDERER & ANOR V JOHN BOWIE-WILSON & ANOR JUDGMENT 1 In 1968 Roy Jacuzzi invented and marketed what has now become known as the Jacuzzi. That invention provides for the incorporation of jets in the side or floor of a pool or tub which are connected to pumps which, when activated, agitate the water in the tub or pool. The question in this litigation is whether a Jacuzzi is a swimming pool within the meaning of that term in a restrictive covenant. 2 The plaintiffs are the registered proprietors of No 11 Wyuna Road, Point Piper. The defendants are the registered proprietors of No 11B which adjoins the plaintiffs' property. In 1965, No 11B was subdivided from the block of No 11, subject to the covenant that "no swimming pool shall be constructed upon or within the land" (the Covenant). 3 In March 1998 the defendants lodged with the Woollahra Municipal Council (the Council), a Development Application and Building Application to construct a swimming pool on their property. The Council granted development consent for the swimming pool in July 1998, however the Covenant prevented the defendants from constructing the swimming pool. 4 The defendants brought proceedings in this Court for an order extinguishing the Covenant. Those proceedings were unsuccessful: Bowie-Wilson & Anor v Lederer & Anor NSWSC Young J, unreported, 20 May 1999. 5 In February 2000 the defendants lodged with the Council a Development Application for a Jacuzzi with a pond and associated landscaping (the Jacuzzi). The Council granted Development Consent in May 2000. In September 2000 the defendants made application to modify the consent and the Council approved the modification in December 2000. 6 The plaintiffs notified the defendants that they objected to the Jacuzzi as they were of the view that it infringed the Covenant. They requested the defendants to provide undertakings that they would not proceed with the development. Those undertakings were not given and the plaintiffs commenced these proceedings by Summons filed on 23 February 2001. 7 On 2 March 2001 Santow J gave some directions and listed the matter for hearing before me in the Duty List on 16 March 2001 when Mr Preston SC, leading Mr F Kunc of counsel, appeared for the plaintiffs and Mr Hutley SC appeared for the defendants. An Amended Summons was filed on that day by which the plaintiffs seek a declaration that the development contained in the modified Consent is a "swimming pool" within the meaning of the Covenant and an order that the defendants be restrained from carrying out any building work pursuant to or in reliance upon the modified Consent. 8 The plaintiffs are very concerned that the use of the Jacuzzi will disturb their peace and the enjoyment of their property. In particular the first plaintiff is concerned that his quiet afternoons reading the newspaper in the backyard after his long day at work will be lost. The plaintiffs are also concerned generally about the noise that may be generated by the use of the Jacuzzi. Evidence was called on the extent of the noise that may emanate from use of a swimming pool and use of a Jacuzzi. 9 The original Development Consent granted to the defendants was for a swimming pool which was 1.1 metres deep at the shallow end and 1.9 metres deep at the deep end. The swimming pool also had provision for a spa and spa seat located half way along the pool on one of its borders. 10 The dimensions of the new development are similar to the original development but with a number of important differences. The length and width of the swimming pool are now the length and width of a pond, however the pond is only 300 mms deep. The position of the spa in the swimming pool is now the position of the Jacuzzi which is 3.6 metres long, 1.5 metres wide and 900 mm deep. A copy of the plan of the swimming pool the subject of the original Consent and a copy of the plan of the Jacuzzi and the pond are contained in the Schedule to this judgment. 11 Mr Preston SC submitted that the Covenant should be construed fairly and liberally in context according to its written terms but having regard to its enduring function. He also submitted that one must recognise that a landowner may spend considerable money in acting upon it: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 at [41]; Bowie-Wilson v Lederer, at 3 - 4. Certainly the plaintiffs' evidence is that the existence of the Covenant was a major reason their house was so attractive to them. 12 Mr Preston relied upon the following portion of McHugh JA's judgment in Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 310: The courts have (refused) to categorise an "existing use" so narrowly that natural changes in the method of using the land or carrying on a business or industry will render an existing use right valueless. At the same time, the courts have been concerned not to categorise the purpose of an existing use so widely that the land or premises could be used for a prohibited purpose which was not part of its use at the commencement of the legislation. 13 He also referred to Kitto J's judgment in Perth Shire v O'Keefe (1964) 110 CLR 529 at 535: The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date. and submitted that I should approach the interpretation of this question in a similar way. 14 The parties are not at issue that the Covenant is a promise, restricting land use, given for the benefit of other land and in this case for the benefit of protecting the amenity of the plaintiffs land: Easements and Restrictive Covenants in Australia. 2nd Edition, Bradbrook and Neave, Butterworths 2000. The only issue is whether the proposed Jacuzzi falls within and is prohibited by the terms of the Covenant. 15 Mr Preston submitted that the Jacuzzi is a species of the genus swimming pool. He gave the example of a St Bernard dog and a chihuahua. Although very different in size, appearance and behaviour no one doubts that they are both dogs. He submitted that while a lap pool, an Olympic pool, a recreational backyard pool and spa may differ significantly in size, appearance and the kinds of specific activity that may occur in and around them, they are all relevantly swimming pools. 16 In support of this submission Mr Preston relied upon the definition of swimming pool within the Swimming Pools Act 1992 (NSW). That definition is as follows: "swimming pool" means an excavation, structure or vessel: (a) that is capable of being filled with water to a depth of 300 millimetres or more; and (b) that is solely or principally used, or that is designed, manufactured or adapted to be solely or principally used, for the purpose of swimming, wading, paddling or any other human aquatic activity, and includes a spa pool, but does not include a spa bath, anything that is situated within a bathroom or anything declared by the regulations not to be a swimming pool for the purposes of this Act. Spa Pool is defined as follows: "spa pool" includes any excavation, structure or vessel in the nature of a spa pool, flotation tank, tub or the like. 17 Reliance was also placed upon the Second Reading Speech in the Legislative Assembly (Hansard, 30 April 1992, pp 3283-3287), a reading of which the plaintiffs submitted makes clear the legislature "viewed spas as swimming pools". 18 Mr Hutley submitted that the purpose of that Act is for safety precautions in an attempt to prevent children from falling into a body of water in which they may be in danger of drowning. I agree with that submission. The Second Reading Speech refers to the "principal object" as being to "provide greater protection for the most vulnerable and deserving members of our community - children under the age of five". In these circumstances the definition does not assist me in deciding whether the Covenant prohibits a Jacuzzi. 19 The plaintiffs placed further reliance upon the fact that the Swimming Pool and Spa Association Standard Form of Contract was for the "supply and construction of a concrete swimming pool or spa". The definition of dwelling in s 3 of the Home Building Act 1989 (NSW) is expressed to include a "swimming pool or spa" and the Building Code of Australia Housing Provisions section 1.1.1.2 defines swimming pool to include "a bathing or wading pool or spa". All of these references are relied upon to support the submission that the Jacuzzi is, for the purposes of the Covenant, a swimming pool. These definitions could support either side in this litigation as the spa is referred to separately from the swimming pool. Ultimately I have not found them to be of much assistance. 20 Mr Hutley SC submitted that the inherent nature of a Jacuzzi is associated with relaxation. He submitted it is for "lolling" whilst being surrounded and immersed in bubbles. He contrasted the more active recreational activities that are associated with a swimming pool, including diving and swimming laps of freestyle, butterfly, breaststroke and backstroke. 21 The proposed Jacuzzi does not have any of the elements that one might associate with a pool designed for swimming - a swimming pool. Such a small body of water contained within the Jacuzzi, as a matter of common sense, is not conducive to the activity of swimming. Indeed the designed purpose of the structure is to provide an aerated body of water in which the activity is necessarily sedentary. It is difficult to comprehend the activity of swimming in 300mm of water in the pond. 22 The approach adopted by the plaintiffs is not so much one that is restricted to the identified activity of swimming but to the incidental effects of that activity. 23 As has been rhetorically asked by the defendants' counsel, does offence arise from noise from swimming per se? If so, then it is submitted that many activities, including those that have nothing to do with water that are normally associated with home life would be caught. If it is that the offence arises from water per se, many ornamental features such as fish ponds and fountains would also be caught. Indeed in this case Mr Preston contended that even if the defendants placed fish in the pond area of the development it would still infringe the terms of the Covenant. The defendants submitted that, on any view, the importation of restrictions on incidental activities could not be said to represent the colloquial or ordinary meaning of the words used. 24 Mr Preston's example of the St Bernard and the chihuahua bears further analysis. If there was a covenant preventing dogs generally on a property both the chihuahua and the St Bernards would be prohibited. If however the prohibition was on large dogs, the chihuahua would be permitted. If the Covenant had been in respect of all types of pools the Jacuzzi may have been prohibited. In this case the Covenant is restricted to swimming pools. 25 Approaching the interpretation of the Covenant in the manner propounded by the plaintiffs with reference to the authorities relied upon, I am satisfied that a Jacuzzi is not a swimming pool and is not prohibited. I am also satisfied that the 300 mm deep pond alone or in combination with the Jacuzzi is not a swimming pool. The plaintiffs are not entitled to the relief they seek in the Summons. 26 The Summons is dismissed. The plaintiffs are to pay the defendants' costs of the proceedings. ************ SCHEDULE POOL JACUZZI Last Modified: 03/27/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.