Autore 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.

7. 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.

8. 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).

The regulatory framework

9. The following sections of the Swimming Pools Act 1992 are relevant.

7   General requirements for outdoor swimming pools

(1)   The owner of the premises on which a swimming pool is situated must ensure that the swimming pool is at all times surrounded by a child-resistant barrier:

(a)   that separates the swimming pool from the residential building situated on the premises and from any place (whether public or private) adjoining the premises, and

(b)   that is designed, constructed, installed and maintained in accordance with the standards prescribed by the regulations.

Maximum penalty: 50 penalty units.

(2)   The diagrams in Part 1 of Schedule 1 illustrate the provisions of this section.

Note. Section 7 should be read in conjunction with the other provisions of this Part, in particular sections 8, 9, 10, 18 and 22.

22   Local authority may grant exemptions from barrier requirements that are impracticable or unreasonable in particular cases

(1)   The local authority may, on application made by the owner of any premises in or on which a swimming pool is situated, or proposed to be constructed or installed, exempt the swimming pool from all or any of the requirements of this Part if it is satisfied, in the particular circumstances of the case:

(a)   that it is impracticable or unreasonable (because of the physical nature of the premises, because of the design or construction of the swimming pool or because of special circumstances of a kind recognised by the regulations as justifying the granting of an exemption) for the swimming pool to comply with those requirements, or

(b)   that alternative provision, no less effective than those requirements, exists for restricting access to the swimming pool.

(2)   An exemption may be granted unconditionally or subject to such conditions as the local authority considers appropriate to ensure that effective provision is made for restricting access to the swimming pool concerned or the water contained in it.

26   What appeals may be made against the decisions of a local authority?

(1)   An appeal lies to the Land and Environment Court against the following decisions of a local authority:

(a) a decision to refuse to grant an exemption under section 22 in accordance with the terms of the relevant application,

10. Section 3 of the Pools Act defines the following terms:

3(1)   Barrier   means a fence or wall, and includes:

(a)   any gate or door set in the fence or wall, and

(b)   any other structure or thing declared by the regulations to be a barrier for the purposes of this Act.

3(3)   Notes included in this Act do not form any part of this Act.

11. The following clauses in the Swimming Pools Regulation 2008 (the Regulations) are relevant:

4   References to compliance with AS 1926.1 – 2007 or Building Code of Australia

For the purpose of this regulation, a child-resistant barrier, window or doorway is taken to comply with the standards set out in a clause in AS 1962.1-2007 or the Building Code of Australia so long as it complies with the minimum requirements for that clause.

Division 1 Restriction of access to outdoor swimming pools

5   General requirements for outdoor swimming pools

For the purposes of sections 7(1)(b) and 12(d) of the Act, the prescribed standards in accordance with which a child-resistant barrier surrounding a swimming pool is to be designed, constructed, installed and maintained are the standards set out in the Building Code of Australia.

12. The applicable standard under the Regulations is AS 1962.1-2007: Swimming Pool Safety Part 1: Safety barriers for swimming pools. Clause 2.1 of Section 2: Design and Construction of Elements of a Barrier states:

2.1 GENERAL

A barrier shall be designed and constructed so that it will restrict access by young children.

The barrier shall be a permanent structure.

The effective barrier height shall not be less than 1200 mm and shall include a continuous non-climbable zone.

The non-climbable zone (NCZ) may be located anywhere on the vertical face of the barrier.

In this zone, the distance between any hand and foot hold shall not be less than 900 mm (Refer to Figure 2.1 for generic examples.)

2.3 FENCING

2.3.1   General

The location of the NCZ shall be on the outside of the fencing, except for a boundary fence. A boundary fence shall not be less than 1800 mm high. The NCZ may be located at the top on the inside of the fencing (see Figures 2.1, 2.2(a) to 2.2(c), 2.3(A) and 2.3(B)).

The fence shall be designed and installed to be vertical or, where specifically designed to lean away from the pool, it shall not do so by more than 15º to the vertical and shall be maintained at a minimum height of 1200 mm, measured vertically from the top of the fence.

13. Clauses 4 and 5 of the Regulations reference the Building Code of Australia (BCA). In submissions made for the applicants and not opposed by the council, cl. 3.9.3.0 of the BCA references the most recent version of the Australian Standard, AS 1926.1 – 2012. I am satisfied that this standard also applies to the site. Relevant definitions in cl. 1.3 and other applicable clauses are given below. The wall in question is a ‘boundary barrier’.

1.3.1   Barrier

The assembly of components, natural or otherwise, that restricts access to the pool. The barrier includes items such as fences, posts and panels, gate units, gates and doorsets, constructed or natural walls retaining or otherwise, sides of buildings, and balustrades on a balcony, where they form part of the intended barrier.

1.3.2   Barrier height

The height of the barrier perpendicular to the finished ground level.

1.3.3   Boundary barrier

A dividing barrier between two adjoining properties.

1.3.6   Finished ground level

Ground level or other permanent stable surface.

1.3.18   Outside of the barrier

That side of a barrier facing away from the pool area.

1.3.20   Pool area

The area that contains the pool and is enclosed by a barrier.

2.1   GENERAL

A barrier shall be designed and constructed so that it will restrict access by young children.

The barrier shall be a permanent barrier.

The height of the barrier within the property shall be not less than 1200 mm on the outside of the barrier.

Barriers may be constructed from any durable material, provided the barrier complies with the requirements of this Standard.

A barrier other than a retaining wall, shall be vertical or lean away from the pool by not more than 15º.

2.2.4   Boundary barriers

Where a boundary fence acts as a barrier to a pool, it shall have a height not less than 1800 mm on the inside and NCZ 5 formed as a quadrant of 900 mm radius down from the top of the inside of the barrier. See Figure 2.2(a). The following also apply:

(a)   NCZ 5 is not invalidated by the intersection of a compliant internal fence provided the width of the top rail or surface of the intersecting barrier is not more than 50mm wide at any point within the non-climbable zone and intersects at an angle of between 45 and 135 degrees to the 1800 mm boundary barrier (see Figure 2.2(b)).

(b)   Where the top rail or surface of the internal barrier is greater than 50 mm and is located within the NCZ 5, the height of the lower barrier shall extend to a height not less than 1800 mm and extend not less than 900 mm from the intersection (see Figure 2.2(c)).

The hearing

14. The hearing commenced on site. The Court was assisted by the parties’ experts, Mr Darroch for the applicant, and Mr Funke, council’s Acting Senior Building Surveyor. The experts prepared a joint report. The pool enclosures of both 21 and 23 Kenneth Street were inspected. Mr Funke identified several other portions of the pool enclosures on both properties which, in his opinion are also non-compliant with the relevant standards.

15. In their joint report the experts relevantly agree that:

• The matter relates only to the compliance of the eastern boundary wall;

• The pool barrier comprise four areas of non-compliance:

♦ The northern-most portion of the pool barrier where the day bed adjoins the boundary wall producing a pool barrier height of 1330mm where 1800mm is required;

♦ The second northern-most portion of the pool barrier in the zone of the 1800mm arc from where the day bed adjoins the boundary wall producing a pool barrier height of 1330mm where 1800mm is required;

♦ The central portion of the pool barrier between the 1800mm arc and the southern step down where the existing wall produces a pool barrier height of 920 mm where 1730mm is required [this, I think, is meant to be 1730mm where 1800mm is required];

♦ The southern-most portion of the pool barrier where the existing wall steps down producing a pool height barrier of 1030mm where 1800mm is required;

♦ If the existing day bed is removed to a distance of at least 900mm from the boundary wall, the non-compliances associated with the day bed will be cured; and

♦ It is not impracticable or unreasonable (because of the physical nature of the premises or the design or construction of the pool or because of special circumstances of a kind recognised by the Regulations as justifying granting of an exemption) for the pool enclosure to comply with those standards and there would be a range of methods, materials and finishes available to meet compliances.

16. In Court, the experts agreed that both pool enclosures on 21 Kenneth Street and 23 Kenneth Street are currently non-compliant with the relevant standards. This non-compliance is not confined to the common boundary wall.

17. The experts disagree as to whether the current arrangement on the common boundary provides an alternative that is no less effective for restricting access to the swimming pool.

18. At [2.1.23], [2.1.24] and [2.1.26] in the joint report Mr Darroch opines:

2.1.23   As such, in order for one to gain access to the non-compliant barrier one would already be within a compliant swimming pool enclosure.

2.1.24   It is noted that this application for barrier exemption applies only to this portion of the common eastern boundary of 21 Kenneth Street. It is noted that non-compliances do exist on other boundaries which will require attention and will need to be brought into compliance.

2.1.26   In this case, it would be appropriate for the remaining swimming pool barriers to be brought into compliance and for the exemption to be dependent upon the pool barriers to each of the pool enclosures of 21 and 23 Kenneth Street to remain compliant.

19. In oral evidence, Mr Darroch maintained his opinion.

20. In the joint report Mr Funke considers that the non-compliant southern-most section cannot be considered no less effective as the entire perimeter of the pool at 23 Kenneth Street is climbable and has a width of 300mm. In his opinion, there is nothing to stop anyone putting a ladder or anything to climb against the wall at 23 Kenneth Street and climbing down into 21 Kenneth Street.

21. In oral evidence Mr Funke considered that a boundary wall height of 1800mm is a deterrent to anyone, in particular a young child, from jumping down. He maintained his opinion stated on site that the boundary wall of 23 Kenneth Street is accessible from its eastern end and the southern wall is wide enough to enable someone to walk along the edge and climb into 21 Kenneth Street. In Mr Funke’s opinion, each property with a pool must be responsible for maintaining its own compliance.

22. Mr Patterson for the council submits that the applicants are relying on the compliance of another property in order to achieve compliance on their property. He asserts that taken further, this could imply that there wouldn’t need to be a boundary fence between adjoining pool enclosures on adjoining properties. Mr Patterson contends that the rules and standards are there for a purpose, the purpose being, in particular, the protection of young children in and around pools. He presses Mr Funke’s experience in assessing pool compliance and his opinion that 1800mm is a deterrent for jumping and the existing 1030mm section provides no such deterrent. Mr Patterson asserts that there are no particular or special circumstances that warrant non-compliance and the existing walls do not provide an alternative that is no less effective than the requirements in the statues and the standards. For this reason, he argues, the application for an exemption should be refused.

23. Mr Eastman for the applicant presses the words “no less effective” in s 22(1)(b). In his written and oral submissions, he contends that Mr Darroch’s reasoning in the joint report, as opposed to Mr Funke’s limited and numerical approach to compliance, should be given more weight. Mr Eastman contends that if the purpose of the relevant standard is to enhance safety and protect young children by restricting access to a pool, then this is already achieved in this case. He supports Mr Darroch’s opinion that given a child would already be within a restricted access area of presumed supervision, there is no warrant to impose a second layer of regulation when the purpose has already been achieved. He also maintains that the lower section of the wall adjoins a stair well on 23 Kenneth Street. In regards to achieving compliance elsewhere on both properties, Mr Eastman submits that suitable conditions can be drafted and any requirement for works on adjoining land are similar to the circumstances where an easement is required over adjoining land. However, Mr Eastman contends that an alternative “no less effective” exists and the exemption should be granted.

Findings

24. Mr Eastman made reference to my findings in Reemst v Woollahra Municipal Council [2012] NSWLEC 1141 where at [41] I state in part that: ‘It is self-evident that the overall intent of the Act, Regulations, relevant sections of the BCA and the Australian Standard is to make it very difficult for a child to gain access from a dwelling to a pool.’ While this statement was made in the context of the matter then before me, it does not accurately reflect the broader intent of the statutes and standards. The intent is to make it very difficult for a child to gain access to a pool on private land from anywhere, be it from a dwelling on the land, other parts of the same land, an adjoining private property, public reserve or any other area.

25. The applicants’ case clearly rests on there being a compliant pool enclosure at 23 Kenneth Street. The fact of the matter, and agreed by the parties’ experts, is that in addition to the wall in question, neither property is fully compliant with the Standard prescribed in the Act or with the current (2012) version of AS 1926.1. Therefore it is reasonable to assume that the current measures do not sufficiently restrict access to either swimming pool.

24. Section 7(1) states:

The owner of the premises [emphasis added] on which a swimming pool is located must ensure that the swimming pool is at all times surrounded by a child-resistant barrier.

27. In my view this requirement cannot be delegated to another owner of premises whether they own an adjoining pool or not. The applicants’ position is that the pool enclosure at 23 Kenneth Street is compliant - when it is not, and presumes it to be a supervised area. This cannot be presumed.

28. While this matter only seeks an exemption for the eastern boundary wall, given the intent of the statutes and the standards, I cannot consider this element in isolation. With the benefit of the site inspection and with Mr Funke’s assistance in indicating other areas of non-compliance and how access could be gained from 23 Kenneth Street, I cannot be satisfied in the particular circumstances of this case that what exists provides an alternative means no less effective than the requirements required by Part 2 of the Pools Act – Access to swimming pools, for restricting access to the swimming pool at 21 Kenneth Street, Tamarama. Although the applicants did not pursue the ‘impracticable or unreasonable’ route in s 22(1)(a), the parties experts agree that providing a compliant boundary barrier is neither impracticable nor unreasonable.

29. Therefore as a consequence, the Orders of the Court are:

1. The application for an exemption pursuant to s 22 of the Swimming Pools Act 1992 made on 3 March 2015 by the owners of 21 Kenneth Street, Tamarama is refused.

2. The exhibits except (2) are returned.

_____________________

Judy Fakes

Commissioner of the Court

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Decision last updated: 25 August 2015