Autore & anor v Waverley Council [2015] NSWLEC 1350

Land and Environment Court New South Wales

Medium Neutral Citation: Autore & anor v Waverley Council [2015] NSWLEC 1350 Hearing dates: 12 August 2015 Date of orders: 25 August 2015 Decision date: 25 August 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Application for an exemption refused Catchwords: SWIMMING POOLS: Application for pool barrier exemption; Legislation Cited: Swimming Pools Act 1992 Swimming Pools Regulation 2008 Cases Cited: Reemst v Woollahra Municipal Council [2012] NSWLEC 1141 Category: Principal judgment Parties: Rosario and Jane Autore (Applicants) Waverley Council (Respondent) Representation: Applicant: Mr N Eastman (Barrister) Respondent: Mr S Patterson (Solicitor)

Solicitors: Applicant: Gadens Respondent: Wiltshire Webb Staunton Beattie Lawyers File Number(s): 20256 of 2015

Judgment 1. COMMISSIONER: This is an appeal against Waverley Council's refusal to grant an exemption pursuant to s 22 of the Swimming Pools Act 1992 (the Pools Act). The applicants seek an exemption with respect to swimming pool barrier requirements. The appeal comes to the Court under s 26(1) of the Pools Act. 2. The applicants' in ground concrete swimming pool is located at the rear of their property at 21 Kenneth Street, Tamarama (the site). It was approved in 2013 by DA24/2012. The pool is located at the rear of the site. At the rear of the adjoining property to the east, 23 Kenneth Street is another in ground swimming pool. The rear boundaries of both properties adjoin a public reserve on Mackenzies Bay through which traverses the Bondi to Bronte coastal path. Both properties enjoy extensive views of the ocean, beaches and coastal headlands. 3. The masonry boundary wall between 21 and 23 Kenneth Street forms a common side wall between the two pool enclosures. The barrier forming the northern side of the pool enclosure at 21 is further north than the northern barrier on 23. In the area where the two pools are otherwise enclosed, the common masonry wall ranges in height over two stepped sections from 1730mm to 1030mm measured from the ground level of the applicants' property. The 1030mm section is at the southern end of the eastern boundary wall. This section adjoins a flight of stairs providing rear access from 23 Kenneth Street down to the reserve. 4. It is these portions of the boundary wall between the parties' pool enclosures for which the applicants seek an exemption from the 1800mm height prescribed in the relevant Act, Regulations and Australian Standards. 5. Within the pool enclosure of 21 Kenneth Street, there is a 'day bed' constructed along the inside of the northern pool fence between the gate on the western end and abutting the boundary wall on the east. 6. The exemption is sought under s 22(1)(b) of the Pools Act; the applicants do not rely on the 'impracticable or unreasonable' provisions of s 22(1)(a) (see [9] below). The applicants' position is articulated in the "Section 22 Exemption Request Report" accompanying the 'Pool Barrier Exemption Request Form' submitted to council on 15 January 2015 prepared by Mr Darroch, the applicants' planner. Relevantly this states: The applicant notes that the subject swimming pool enclosure for 21 Kenneth Street adjoins a recently completed swimming pool enclosure for 23 Kenneth Street. The common boundary wall (where it forms part of the pool barrier enclosure) achieves a height in excess of 1800mm from the finished ground levels of 23 Kenneth Street. In those locations where the common boundary wall does not achieve the required 1800mm from the finished ground levels of 21 Kenneth Street, it adjoins an existing compliant pool barrier enclosure on 23 Kenneth Street. It can reasonably be accepted that the boundary wall between the properties is in fact within the bounds of a continuous pool barrier enclosure while the pool barrier enclosure is maintained on each of the properties at 21 Kenneth Street and 23 Kenneth Street. Where the pool barrier enclosure on 21 Kenneth Street adjoins the area outside of the pool enclosure on 23 Kenneth Street, in the vicinity of the daybed, the boundary wall maintains a height from the finished ground level of 23 Kenneth Street of 1830mm and is compliant with the pool barrier enclosure requirements from that property. Consequently, it is considered appropriate to accept the s 22(1)(b) request on condition that the pool enclosure is maintained on 21 Kenneth Street. 1. The plans accompanying the original Complying Development Certificate application for the pool, received by council on 16 January 2014, indicate that the eastern boundary wall was to be increased to a height no greater than 1800 mm. A further three subsequent Modified Complying Development Certificate applications all have plans with notations in red font or hand written in red ink that the wall is to be 1800mm in order to comply with the relevant standard. 2. The council contends that the exemption should be refused. Council's contention in its Statement of Facts and Contentions reads: The exemption should be refused as it does not comply with Australian Standard 1926.1-2007 ("the standard") in circumstances where it is not impracticable or unreasonable for the swimming pool to comply with Part 2 of the Act and no alternative provision, no less effective than the requirements of Part 2 of the Act exists for restricting access to the swimming pool. Particulars: The pool barrier is 1030mm high whereas the standard sets out a minimum height of 1200mm (Section 2, Clause 2.1). The boundary fence is 1730mmhigh whereas the standard sets out a minimum height of 1800mm (Section 2, Clause 2.3.1).