Andrew Charles MacDonald v Blue Mountains City Council [2018] NSWLEC 1025

Land and Environment Court New South Wales

Medium Neutral Citation: Andrew Charles MacDonald v Blue Mountains City Council [2018] NSWLEC 1025 Hearing dates: 29 and 30 May, 23 August and 16 October 2017 Date of orders: 24 January 2018 Decision date: 24 January 2018 Jurisdiction: Class 2 Before: Martin SC Decision: See [103] and [104] Catchwords: Appeal against direction issued under s 23 of the Swimming Pool Act 1992 - child-resistant barrier around swimming pool - bed and breakfast accommodation –large property exemption not available – certificate of compliance under s 22 of the Swimming Pool Act Legislation Cited: Swimming Pools Act 1992 Swimming Pools Regulation 2008 Cases Cited: Medway v Pittwater Council [2014] NSWLEC 1005 Texts Cited: Australian Standard AS 1926.1 (2012) Category: Principal judgment Parties: Andrew Charles MacDonald (Applicant) Blue Mountains City Council (Respondent) Representation: Solicitors: Mr MacDonald (self-represented) Mr Cork, McPhee Kelshaw Solicitors (Respondent) File Number(s): 2016/239417 Publication restriction: No

Judgment 1. Mr Andrew MacDonald is the proprietor of a beautiful property located at 169 Chapman Parade Faulconbridge, with well-tended grounds located within a bushland setting (the property). The property comprises his own residence as well as three self-contained dwellings known as Studio Cottages. At the rear of these buildings is a pool, surrounded by sandstone rock, loose soil and landscaped areas. Photographs of the pool, taken from Exhibit 9, appear below. The heavy black lines represent a hand-drawn fence added by Mr Brian Crane, Executive Principal of Health and Compliance Services for the Council, to indicate the possible location of a pool fence. This is the subject of further discussion and evidence below at [68ff]. 1. After a lengthy history of engagement between the parties, on 12 July 2016 the Blue Mountains City Council (the Council) issued Mr MacDonald with a direction under s 23 of the Swimming Pools Act 1992 (SP Act) requiring Mr MacDonald to provide a child-resistant barrier ("CRB") to the pool, compliant with the relevant Australian Standard (AS 1926.1) (the Direction). It is against this direction that Mr MacDonald has appealed, filing this appeal on 9 August 2016.