Berckelman v Mosman Municipal Council

[1988] NSWLEC 145

Land and Environment Court

of New South Wales

CITATION:	Berckelman v Mosman Municipal Council [1988] NSWLEC 145
PARTIES:	APPLICANT I Berckelman RESPONDENT Mosman Municipal Council
FILE NUMBER(S):	40270,; 20623 of 1988
CORAM:	Cripps J
KEY ISSUES:	:-
LEGISLATION CITED:	Local Government Act 1919 Land and Environment Act 1979
CASES CITED:	Manning Shire Council v. Caernarvon Pty. Limited; Binnie v. Mosman Municipal Council, (1988); Morris v. Sydney City Council, Hemmings J,(1987)
DATES OF HEARING:	03/03/88, 07/03/88
DATE OF JUDGMENT:	11/11/1988
LEGAL REPRESENTATIVES:	APPICANT Mr Rigg

JUDGMENT:

His Honour: On 7 March 1988, Assessor Riding published a decision in an appeal to the Land and Environment Court under s.288C(5) of the Local Government Act in which the following order was made:

"The applicant be directed to fence the swimming pool at 11 Upper Spit Road, Mosman by erecting a fence from the existing eastern fence at right angle to that fence and passing 1m to the south of the pool steps to close to the line of the western edge of the pool, thence northerly to the line of the western edge of the southern doorway in the rumpus room eastern wall and thence westerly to that wall. A gate be provided in approximately the middle part of the fence to the south of the pool and the gate existing to the northwest of the pool be upgraded to comply with the Australian Standard 1926-1986. All the above work be carried out in compliance with the Australian Standard 1926-1986 and be completed within three months from the date of this order."

The land owner has appealed to the Court pursuant to s.56A of the Land and Environment Court Act, 1979 and the Council has cross appealed. An appeal to the Court against the decision of an assessor in proceedings in Class 2 of the Court's jurisdiction is limited to questions of law.

On 14 December 1987, the Council served a notice on Mr. Berckelman pursuant to s.288C of the Local Government Act directing him as owner of land on which a swimming pool was located to undertake work identified as follows:

"Fence the swimming pool, such fencing being childproof and to be in accordance with the Council's Code for fencing swimming pools (details attached) and in particular to isolate the pool from the house and other properties. Any gates to the swimming pool enclosure are to be self-closing, self-latching and are to be fitted with childproof latches".

On 23 December 1987, Mr. Berckelman appealed to the Court pursuant to s. 288C(5) of the Local Government Act, 1919. The appeal was heard on 3 and 7 March 1988. In the course of the proceedings, the Council tendered (Ex.'6') five sketch plans indicating that it, the Council, was prepared to accept any one of five proposals.

The swimming pool is located in a patio on the eastern side of the house. There is a barbeque area to the south of the pool and there are two doors leading out onto the patio from the house. One of the proposals of the Council was that one of the doors be permanently sealed and that a fence be constructed from the brick pillars separating the two doors to the eastern fence of the boundary passing along the southern boundary of the swimming pool.

The Council's proposal, if implemented, would have enclosed the pool on one side by the fence referred to above, on another by the western wall of the house with one of the doors being permanently closed off and on the other two sides by fences along the boundary. The Council's proposal permitted access from the barbeque area to the pool through a childproof gate but no access from the house to the pool directly. The Assessor made an order fencing the pool and for the work to be carried out generally in accordance with one of the Council's proposals except that he did not direct that the door from the house to the pool be sealed.

As will be seen, one of the grounds of appeal (ground 6) is that the Assessor erred in directing that the applicant fence "to the line of the western edge of the southern doorway". It is common ground in the appeal that those words ought read "to the brick pillar separating the southern and northern doorways in the western wall". The parties have agreed that if all other grounds of appeal are dismissed, I should uphold the appeal and make an order to give effect to the decision of the Assessor.

Mr. Rigg, on behalf of the owner, has submitted that the Assessor erred in law in that:

"1. The Court erred in not holding the Council's notice dated 14 December 1987 was invalid.

2. The Court erred in failing to apply the appropriate test as required by 288C(2) of the Local Government Act, 1919 (the Act).

3. ... (not pressed).

4. The Court erred in directing the applicant to fence the swimming pool in the manner not the subject of any notice in writing served pursuant to s.288C of the Act.

5. The Court erred in failing to give any proper weight or consideration to the evidence in the proceedings in circumstances that no assessor could reasonably have come to the decision delivered in the proceedings without making a finding contrary to the evidence.

6. The Court erred in relation to order 1 in directing that the applicant fence 'to the line of the western edge of the southern doorway'.

7. ... (not pressed).

8. The Court erred in directing the applicant to fence in a manner not the subject of any issue in the proceedings: not the subject of the evidence tendered or offered in the applicant's case, and not the subject of the respondent's notice dated 14 December 1987 under s.288C of the Act".

The Council also appealed as follows:

"1. The appeal is from part only of the decision of Mr. Assessor Riding.

2. Having found in respect of the pool presently constructed at premises 11 Upper Spit Road, Mosman that:-

2.1 the pool as presently constructed and fenced is dangerous; and

2.2 supervision of the pool from within the dwelling is difficult; and

2.3 notwithstanding the treatment proposed to the downstairs door in the dwelling by the applicant it is likely those doors will be propped open.

The Assessor erred in law in not applying the provisions of 288C of the Local Government Act, 1919 so as to direct the applicant to completely fence or enclose the pool so as to completely isolate the same from the dwellings".

Both appeals raise questions concerning the nature and effect of s.288C of the Local Government Act. That section relevantly provides:

"288C(1) ...

(2) Where the council is, having regard to all the circumstances of the case, of the opinion that a swimming pool is or may be, by reason of its accessibility, dangerous to human life, the council may, by notice in writing serve on the owner of the land on which the pool is located, either -

(a) direct him to fence or enclose the pool; or

(b) direct him to fence or enclose the land or any part thereof on which the pool is located,

in such manner, and within such reasonable time, as may be specified in the notice.

(3) The council may revoke any direction given by it under this section.

(4) ...

(5) Any owner of land who is aggrieved by a direction given to him under this section may, within one month after service of the notice upon him, appeal against the direction to the Land and Environment Court.

(6) ...

(7) ...

(8) ...

(9) Where a direction is given by the council to an owner of land and -

(a) ...

(b) The owner -

(i) does appeal against the direction to the Land and Environment Court and the Court dismisses the appeal or determines the appeal by giving a direction of a kind that could be given by the council under subsection (2); and

(ii) does not comply with the direction given by the Court within the time specified by the Court,

the owner shall, whether or not the council exercised any power conferred on it under subsection (7) or (8) in respect of the land be guilty of an offence under this Act".

Section 39 of the Land and Environment Court Act relevantly provides:

"(2) In addition to any other functions and discretions the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3) An appeal in respect of such decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

(4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest".

On behalf of the owner, Mr. Rigg has submitted that the assessor ought to have held that the Council's notice was invalid "due to the failure by the Council to form the requisite opinion required by and under s.288C of the Local Government Act, 1919". He submits that the evidence demonstrated that the Council acted upon its general policy and did not apply its independent discretion with respect to the subject matter. He submits he is not precluded from raising the matter in an appeal under s.56A and relies on the observations of Wardell J in Manning Shire Council v. Caernarvon Pty. Limited, 34 LGRA 441 at 448. In Carnarvon, Wardell J held that by reason of s.10 of the Local Government Act, s.288C the Court was not authorised to order the fencing of a swimming pool because to do so would have derogated from the provisions of the Liquor Act. He held the notice was invalid. He also upheld a collateral challenge to the validity of the notice upon the ground that the Council failed to form a requisite opinion whe

n it issued the notice and that the deficiency was not cured by an order of the Local Government Planning Tribunal (which did form the requisite opinion) made pursuant to 342BF(1) which, in terms, gave to the Tribunal powers functions similar to that given to the Land and Environment Court pursuant to s.39(2) of the Land and Environment Court Act. The Council had taken proceedings by seeking injunctive relief restraining the owner from hindering the Council in the exercise of its powers under 288C to go on the land and undertake the work. Wardell J decided that the power given to the Board pursuant to 342BF(1) was a power given for the purpose of hearing the appeal and not for the purpose of exercising for the first time a statutory power given to a council. Mr. Rigg, on behalf of the owner, submits that upon the reasoning of Wardell J the Assessor ought to have determined that the notice was invalid.

In my opinion, the owner's submission must be rejected on a number of grounds. The first is that there was no issue before the Assessor concerning the validity of the notice. It is true that the owner had commenced proceedings in the Class 4 jurisdiction for a determination that the notice was invalid. However, Part X of the Local Government Act is not relevantly an "environmental law" and the Court, subject to ss.22 and 23 of the Land and Environment Court Act had no jurisdiction to deal with the claim of invalidity. But even if the Court might, in certain circumstances, have the power to declare such a notice invalid, those circumstances were not present in this case. In my opinion, the Assessor had no power in the exercise of the Court's Class 2 jurisdiction to make a declaration of invalidity. No question was directed to the Assessor requiring or requesting him to refer any question of law to a judge for decision based upon the validity of the notice or that the proceedings be transferred from one class o

f the Court's jurisdiction to another.

I am of the opinion, however, that even if the matter of invalidity had been properly raised and it was open to the Assessor to declare the notice invalid, I do not think the evidence required the Assessor to make that determination. It is not sufficient to establish clearly that the inspector had a strong belief in the importance of fencing all swimming pools. In order to maintain the proposition contended for by Mr. Rigg, it would need to be established that the Council misapplied its discretion in that it applied its policy without having any regard to the particular circumstances of the case before it.

For the abovementioned reasons, it is therefore unnecessary to determine whether the observations of Wardell J in Carnarvon are apposite to a decision of the Land and Environment Court in its Class 2 jurisdiction. It must be remembered, however, that the Land and Environment Court is a superior court of record and that, subject to rights of appeal, its decisions are final. The Land and Environment Court has no jurisdiction to declare that decisions of the Court are void. However, as I have said above, the question does not arise in these proceedings. The Assessor was required to hear an appeal on the merits as to whether, and if so in what manner, Mr. Berkelman's swimming pool was to be fenced. The Assessor was not required to determine the validity of the notice upon which the appeal was based and which to be properly instituted required an assumption that the notice was valid. In my opinion, the Assessor was not required to, and if required to, could not declare the decision to issue the notice invalid. Acc

ordingly the appeal on this ground must fail.

It is also submitted that the Assessor erred in directing the applicant to fence the swimming pool in a manner not the subject of any notice in writing served pursuant to s.288C of the Act. And that the Assessor failed to give proper weight or consideration to the evidence in the proceedings etc..

The powers of the Court when considering an appeal were referred to recently by Holland J in Binnie v. Mosman Municipal Council, 15 August 1988, unreported, in which it was said:

" ... I think the legislature has made it plain in 288C that, subject to the appeal provided by s.5 which, in effect, places the assessor of the Court in the position of the Council for the purpose of exercising the power the safety of human life is put to the forefront and responsibility of deciding by what means it should be protected is placed on the shoulders of the Council (or the Court)".

In that case, the Court was concerned with the validity of successive notices under 288C but His Honour's observations are apposite to the present case. (See also Morris v. Sydney City Council, Hemmings J, 4 November 1987 unreported). In my opinion, it was open to the Assessor to make an order in the terms he did. The remaining submissions advanced by the owner raise no questions of law. They are all questions of fact.

On behalf of the Council it is submitted that upon an opinion being formed (as it clearly was in the present case) that the swimming pool might by reason of its accessibility be dangerous to human life, the Court was under an obligation to direct that the pool be fenced or enclosed and that the direction of the Council is limited to the "manner" by which that is to be done. That is, it is submitted that the word "may" where secondly appearing in s.288C(2) means "shall". However, the question does not really arise in these proceedings because the Assessor, in fact, directed enclosure. I do not accept the submission of Council. In my opinion, there is a discretion in the Council (and hence the Court) to determine whether, in all the circumstances, any fencing is required and if so in what manner it should be fenced.

I do not understand the decision of the Court of Appeal in Basser v. Willoughby Municipal Council 47 LGRA 128 as requiring the contrary conclusion. In Basser's case, the Court of Appeal was concerned with whether a decision of an assessor requiring the fencing of a swimming pool should be set aside because of an error of law. Having determined that s.288C applied to a swimming pool in a building, the Court rejected the submission that "in the manner" was limited to "the character of the fence and did not extend to its location".

In the course of giving reasons, Hutley JA said:

"The council is charged with the fundamental responsibility of taking steps to see that a swimming pool is not by reason of its accessibility dangerous to human life and it is its opinion on that which is fundamental. That opinion is reviewable in the Land and Environment Court, but it is not possible for this Court to review questions of accessibility or whether a situation is dangerous to life because that is a matter of opinion for others. Once the Council has come to that conclusion, the only question is as to how it is to direct the fencing or enclosing either of the pool or land".

It is submitted that, properly understood, the observation of Hutley JA requires a conclusion that the word "may" means "shall" where secondly appearing in s.288C. I do not think that statement, in the context in which it was made, limits the discretion of the Council in the manner contended for. The Interpretation Act provides that unless the context otherwise demands, the word "may" means "may". It would seem to me, with respect, that if the legislature intended that whenever a pool might by reason of its accessibility be dangerous, then it "must" be enclosed or fenced, it could say so in plain terms.

Mr. Hale has also submitted that upon the assumption that the word "may" does not mean "must", the assessor erred in law because he failed to direct that the pool be totally enclosed. As I have pointed out above, he did not require the sealing of the door in the western wall of the house. However, I do not think the error (even if it be an error) was an error of law. If it was an error, it was an error of fact. Secondly, I am not persuaded that, in any event, the assessor made an error of fact. It is true that he did not require that the door in the western wall be sealed. But it is not suggested, I think, that in directing that a pool be enclosed a provision may not be made for people to have access to it. The Council asked that access be provided by a gate in a fence in the southern side of the pool. The Assessor made provision for an additional means of access through the door in the western wall. The door like the gate is capable of being closed. In these circumstances, I cannot see how it can be contende

d that the pool is not enclosed. At all events, I am of the opinion that once an opinion is formed that a pool might be dangerous and a further opinion is formed that a pool ought be fenced or enclosed, the manner of fencing or enclosing it are matters for the Council (of the Court).

I am of the opinion for the reasons which I have expressed above that except to do what is the necessary to give effect to the decision made by the Assessor, the appeal and cross appeal should be dismissed. Accordingly, I make the following orders:

1. The order of the Assessor be amended by deleting the words "to the line of the western edge of the southern doorway" and substituting in lieu thereof the words "to the brick pillar separating the southern and northern doorways in the western wall". Otherwise appeal and cross appeal dismissed and each party to pay its own costs.