Kogarah City Council v McOnie (AKA Walker) [2016] NSWLEC 53

Land and Environment Court New South Wales

Medium Neutral Citation: Kogarah City Council v McOnie (AKA Walker) [2016] NSWLEC 53 Hearing dates: 21 April 2016 Date of orders: 21 April 2016 Decision date: 21 April 2016 Jurisdiction: Class 4 Before: Moore J Decision: At [23] to [39] Catchwords: SWIMMING POOL SAFETY – gaps in fences – non-compliance with council orders to rectify fence – no appearance by property owner – service demonstrated – matter heard ex parte – court orders for compliance SWIMMING POOL SAFETY – vegetation near boundary – safety issue as able to be climbed – non‑compliance with council orders – court orders for compliance PUBLIC HEALTH – swimming pool turned black – breeding ground for mosquitoes – non-compliance with council orders – court orders for compliance Legislation Cited: Local Government Act 1993 Swimming Pools Act 1992 Category: Principal judgment Parties: Kogarah City Council (Applicant) Megan McOnie (AKA Megan Walker) (Respondent) Representation: Counsel: Ms J Reid, barrister (Applicant) No appearance (Respondent)

Solicitors: Pikes & Verekers Lawyers (Applicant) File Number(s): 40940 of 2015 Publication restriction: No

extempore Judgment 1. HIS HONOUR: In the rear yard of 37 Boronia Street Kyle Bay is located a swimming pool. The rear area of the property is fenced, with it being fenced on its boundaries to 35 and 39 Boronia Street and to 120 and 122 Kyle Parade Kyle Bay. 2. Kogarah City Council (the Council) brings these proceedings after a lengthy period of compliance inspections undertaken by Mr Michael Plummer, a Compliance Officer employed by the Council. 3. I am satisfied, on the basis of an affidavit sworn by Mr Plummer on 21 April 2016, that Mr Plummer has the appropriate and necessary delegations to undertake the compliance activities, under both the Swimming Pools Act 1992 (the Swimming Pools Act) and the Local Government Act 1993 (the LGA Act), that he has invoked for the purposes of inspection, the making of orders or the giving of directions under those two pieces of legislation. 4. As to the facts in the proceedings, I have two further affidavits of Mr Plummer - one sworn 23 September 2015 and the second sworn 14 April 2016. All three of Mr Plummer's affidavits were read and therefore form evidence in the proceedings, subject to some minor clarification made concerning the contents of [31] of his affidavit of 23 September 2015 and my rejection of the concluding sentence at [22] of his affidavit of 23 September 2015 (that sentence being rejected on the basis that it constituted hearsay evidence). Mr Plummer's evidence goes to the state of the swimming pool and the fence located on 37 Boronia Street. 5. Before turning to the detail of the matters raised in that evidence, it is appropriate to note that the owner of those premises is recorded, as shown in material in evidence on the Council file, as being Ms Megan McOnie. A search of the title of the property made available to me by an affidavit sworn by Ms Reid's instructing solicitor, Mr Tomas Bush, makes it clear that for other purposes Ms McOnie also uses the name Megan Walker, that being the name that appears on the records of Land and Property Information New South Wales as the owner of the premises. 6. The certificate showing that ownership was appended to the affidavit of Mr Bush sworn 20 April 2016 and read in the proceedings. I am satisfied that Ms McOnie and Ms Walker are the same person for the purposes of these proceedings and that the appropriate form of the declarations and orders to be made as a result of the proceedings is that they are to be made concerning Megan McOnie also known as Megan Walker. 7. Ms McOnie, on 22 January 2016, filed a Notice of Appearance in the Court's Registry noting that she appeared personally in the proceedings and, by necessary inference, did not intend, at least at the date of filing of the notice, to be legally represented. 8. At the commencement of the hearing today, there was no attendance by Ms McOnie at the Bar Table at the appointed hour of 10.00 am. I therefore had the court officer call the matter three times outside the courtroom. There being no appearance, for caution, as Ms McOnie had intended that she would be a self-represented litigant and indeed noting that on two earlier occasions before the Registrar she had attended in person, I adjourned the matter for a short period of time to enable her to arrive should she have been running late. 9. At 10.15 am I had the matter called again and there was no appearance by her or on her behalf. As a consequence, I have proceeded to hear the matter ex parte. 10. After the morning adjournment, and prior to dealing with a number of amendments that the Council had sought, and I have granted, to the relief proposed in the proceedings (those amendments arising as a response to matters raised by me with Ms Reid), for abundant caution I had the matter called again and there was no attendance by Ms McOnie or anybody on her behalf in response to that call. 11. The evidence of Mr Plummer discloses a lengthy history commencing in late 2014 when, on 28 November, Mr Plummer and Mr Kneipp, the Council's Manager, Environmental Health and Regulatory Services, inspected the property. On that occasion, he and Mr Kneipp inspected the property in company with Ms McOnie and a male person who accompanied her on that occasion. 12. The inspection showed, through photographs appended to Mr Plummer's affidavit of 23 September 2015, a significant state of dilapidation of the boundary fence between 37 Boronia Street and 39 Boronia Street, 120 Kyle Parade and 122 Kyle Parade. No complaint is made by the Council about the state of the boundary fence between 35 Boronia Street and 37 Boronia Street. 13. The photographic material, in addition to showing the dilapidated state of the fence, also shows the extensive nature of the vegetation in the vicinity of the fence and beyond in the rear yard of number 37 Boronia Street. In particular, relevant to a complaint made by the Council concerning the extent of the vegetation not only being a potential health hazard and thus amenable to being dealt with under the LGA Act, it also discloses, as shown in Annexure E(3) to Mr Plummer's September 2015 affidavit, the vegetation in the rear yard of 37 Boronia Street is both substantial and growing in close proximity to the swimming pool fence. That fence, although non-compliant now, would, if compliant as to fence structure, still have climbable vegetation in close proximity to the fence, that being a matter pressed by the Council as a second basis for requiring intervention with the vegetation on the property. 14. Mr Plummer has undertaken a series of inspections over the intervening period of time and he has issued directions under the Swimming Pools Act, comprising a Pool Fencing Notice to Ms McOnie and an order under the LGA Act concerning the state of the water in the swimming pool, described as "being observed as being black on a number of occasions" - a colour able to be seen in some of the earlier photographs - and also, as shown in the more contemporary photographs, a water surface covered with duckweed or some other form of waterborne vegetation. 15. The Council complains that the water in the swimming pool is a matter of health concern given the potentiality for it in its present untreated, unchlorinated form to provide a breeding ground for mosquito vectors. 16. As a consequence, I am satisfied that there is a proper evidentiary basis to establish that there is vegetation in the rear yard of the property that has the potential to harbour vermin as a consequence of the density of the understorey. Second, that that vegetation, at least in the immediate proximity of a portion of the boundary fences, is in breach of the requirements of the Swimming Pools Act and regulations, in that it provides climbable opportunities were the swimming pool itself to be properly fenced. 17. Finally, that the swimming pool fence, at least along its boundaries with 39 Boronia Street, 120 Kyle Parade and 122 Kyle Parade is non-compliant with the relevant elements of the Building Code of Australia, which in themselves import the requirements of Australian Standard 1926.1 of 2007 - that being the relevant standard applicable given the age of the swimming pool. 18. For the purposes of these proceedings, although the Council has served earlier orders on Ms McOnie pursuant to s 124 of the LGA Act or directions pursuant to s 23 of Swimming Pools Act, those earlier orders are not relied upon, but the orders and directions that were served upon Ms McOnie for the LGA Act order on 13 July 2015 and for the Swimming Pools Act direction on 30 June 2015 are relied upon for the purposes of these proceedings. 19. The method of service of the 30 June 2015 Swimming Pools Act direction is set out in [26] of the affidavit of Mr Plummer of 23 September 2015 and a copy of the notice is adverted to in [25] of that affidavit. A copy is annexed at Annexure U to that affidavit. With respect to the Notice of Intention to Give an Order pursuant to the LGA Act, s 124, this is a necessary prerequisite to the giving of an order pursuant to that section. Mr Plummer's affidavit of September 2015 sets out at [27] the process by which, on 30 June 2015, he served such Notice of Intention to Give an Order, the method of which is there set out and a copy of the Notice of Intention is annexed to that affidavit as Annexure V. 20. His affidavit also records that, on 13 July 2015, he issued order 21, pursuant to s 124 of the LGA Act, and that he did so in the fashion set out in [28] of that affidavit. The requirements for the service of notices on persons under the LGA Act are set out in s 710 of that Act. Section 710(2) sets out a variety of alternative bases upon which service may be effected. I am satisfied that the method of giving notice set out in [27] and [28] of Mr Plummer's affidavit satisfies the requirements of a number of the provisions of s 710(2) of the LGA Act and that, therefore, there has been proper service effected on Ms McOnie of both the Notice of Intention to Give an Order under the LGA Act and of the order itself. 21. It is clear from the terms of the photographic evidence contained in the photographs attached to the affidavit of Mr Plummer (sworn 14 April 2016) that the remedying of the deficiencies of the pool fencing, the failure to rectify the vegetation in the proximity of the pool fence and generally within the rear yard of 37 Boronia Street Kyle Bay, and the failure to address the unhealthy state of the water in the swimming pool have not been attended to by the date of that affidavit. 22. I am therefore satisfied, on the basis of that material, that not only have the historical matters concerning the unsatisfactory state of the fencing, vegetation and water within the swimming pool been made out but the fact that it is reasonable to assume, as at the date of this hearing, that that state continues and remains unrectified. 23. The Council's summons sets out a number of elements of the relief claimed. First, the Council sought a declaration concerning the failure to comply with the order. As there were two orders issued and the relief claimed did not plead the particular order upon which reliance was placed for the purposes of proceedings, Ms Reid sought, and I granted, leave to amend [1] of the relief claimed to specify that the order providing the basis for the relief sought was the order dated 13 July 2015, with respect to the service of which I have already set out the process undertaken by Mr Plummer and its compliance with the relative statutory provisions. I am satisfied on the basis of the evidence that is before me, as I have described, that the declaration in the form as amended should be made. 24. Paragraph 2 of the relief claimed similarly sought a declaration with respect to the non-compliance with the direction issued under s 23 of the Swimming Pools Act. As with the declaration sought concerning non‑compliance with the order under the LGA Act, two such directions had been made under the Swimming Pools Act and the direction relied upon for the purposes of the proceedings was not specified in the summons. Ms Reid sought, and I granted, leave to amend that element of the relief claimed to specify that the direction upon which reliance was placed for the purposes of making the declaration sought was that of 30 June 2015. I have earlier discussed the service process undertaken for that and I am satisfied that it was compliant and appropriate. 25. I am satisfied on the basis of the evidence that has been given to me that it is appropriate to make the declaration as sought in the amended claimed relief. 26. I note that there is no specific evidence in any of Mr Plummer's affidavits as to the lack of a resuscitation sign, save to the extent that I can infer from the absence of evidence from him of his observation of such a sign that it would be prudent, as has been earlier set out, to order the installation of a sign compliant with the provisions of the Act. 27. The third element of the relief claimed was a claim for an order that the Respondent treat the water within the pool so as to return it to a healthy condition. The terms of the order originally sought were that compliance was to be required within 30 days of the making of such an order. I put to Ms Reid that I was concerned that the period for compliance would be more appropriately specified as being within a determined period after the service of the order on the Respondent. As I later explained to her, my concern given the potential consequences for the Respondent not complying with the terms of the orders of the Court that, at least in the first instance, such service should be attempted to be effected personally and substituted service only sought if personal service were not able to be achieved. 28. I therefore propose to deal with this order on the basis agreed to by the Council that it should be within 30 days of the effecting of service and consistent with the views I expressed to Ms Reid that that is to be within 30 days of the effecting of personal service on the Respondent - noting, of course, that if personal service is not able to be effected, but is sufficiently attempted, it will be open to the Council to return to the Court and seek orders for substituted service of these orders upon the Respondent. 29. The second order sought at [4] of the relief claimed in the summons was in both broad terms as to the vegetation sought to be removed and as to the broad topographic definition of the area from which the vegetation was to be removed. 30. In response to an enquiry from me, Ms Reid was instructed that the Council's intention was simply to address the state of the vegetation within what ought be the properly fenced pool area at the rear of the premises and did not intend to mandate the removal of vegetation in the front boundary setback of the property. 31. I also expressed concern that the expression "remove overgrown vegetation" was insufficiently precise to enable an assessment as to whether or not compliance was effected if it were attempted. 32. As a consequence of that, during the morning adjournment, Ms Reid received instructions to seek to rephrase that proposed order. The order had originally been proposed in the following terms: An order that the Respondent remove overgrown vegetation from the subject land, except for those trees requiring the prior written consent of the Applicant, within 30 days of the making of this order. 1. The timing of the order being effected was the subject of similar comment by me. 2. During the morning adjournment, Ms Reid received instructions and redrafted the proposed order so that it would read: An order that within 30 days of the date of these orders being served, to which I required the insertion of the word "personally", on the Respondent that the Respondent remove any vegetation above 100 millimetres of the natural ground level in the rear yard of the subject land from the rear building line to the rear fence, as shown hatched on the aerial photograph annexed to these orders and marked "A", except for those trees requiring the prior written consent of the Applicant. 1. I am satisfied that an order made in those terms is sufficiently precise, both as to scope and geographic area covered to be appropriate to be made. 2. The fifth element of the relief claimed, and the third of the orders proposed, is an order that would require the Respondent to install compliant barriers for the pool around the perimeter of the rear yard where they are presently dilapidated, that being along the boundaries with 39 Boronia Street, 120 Kyle Parade and 122 Kyle Parade and to order the installation of a compliant resuscitation sign at the location required by the Swimming Pools Act and regulations, being in the immediate vicinity of the swimming pool area. 3. I am satisfied that an order in those terms, provided that the order also specifies, consistent with the earlier orders, that the period for compliance is to be within 30 days of the effecting of personal service on the Respondent of the orders. 4. The sixth of the elements of the relief sought by the Council, and the fourth of the orders, is that the Respondent pay the Council's costs of the proceedings. 5. Such an order is unexceptional and, as the Council has effectively been entirely successful in the relief that is sought in the proceedings, that order should be made. 6. In order to formalise the orders that I propose that will reflect this decision, I direct that the Council's legal representatives provide my Associate with an electronic version of the revised orders as considered by me in this decision and that, provided those orders are provided to my chambers by 4.00 pm this afternoon, I will make orders dated today in terms of those revised orders. If they are not provided by that time then, when they are provided, I will make them in chambers and date them the date that they are received by my Associate.