Antoniou v The Council of the City of Sydney [2017] NSWLEC 1334

Land and Environment Court New South Wales

Medium Neutral Citation: Antoniou v The Council of the City of Sydney [2017] NSWLEC 1334 Hearing dates: Conciliation conference on 20 June 2017 Date of orders: 28 June 2017 Decision date: 28 June 2017 Jurisdiction: Class 2 Before: Dickson C Decision: See [5] below Catchwords: DEVELOPMENT APPEAL: against Councils Direction under Swimming Pools Act, 1992, Section 23 (1); conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Swimming Pools Act, 1992, Category: Principal judgment Parties: Fay Antoniou (First Applicant) Anthony Antoniou (Second Applicant) The Council of the City of Sydney (Respondent) Representation: Solicitors:

M Singh, Sydney City Council (Respondent) File Number(s): 2017/00064757 Publication restriction: No.

Judgment 1. COMMISSIONER: This is an appeal against Direction from Council to rectify issues surrounding pool barriers. Council issued on the 2nd February 2017 to the applicant a Direction to remedy noncompliance's via the Swimming Pools Act, 1992, Section 23 (1). The applicant appeals part of those Directions. 2. In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to "dispose of the proceedings in accordance with the decision". 3. The Court Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The orders made to give effect to the agreement constitute that document. 4. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 5. The final orders to give effect to the parties' agreement are: 1. The direction dated 2 February 2017 ("the Direction") shall be varied in relation to reason 4, plate 5 on page 4 of the Direction such that the applicant shall within ninety (90) days from the date of these orders, install a barrier compliant with Australian Standard AS1926.1-2012 on top of the southern boundary wall to a height of 900 millimetres behind and extending 900 millimetres horizontally past either side of the vegetation encircled by a red box in plate 5 of the Direction. 2. The direction relating to the vegetation in plate 6 on page 4 of the Direction is revoked. 3. The respondent shall provide to the applicant within seven (7) days from the date of these orders a file note setting out the respondents reasons for reaching the decision to agree to vary the Direction. 4. The appeal is upheld. ……………. D M Dickson Commissioner of the Court 64757.17 Dickson - the Directions (1.39 MB, pdf) 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. Decision last updated: 28 June 2017