Binney v Mosman Municipal Council

[1988] NSWLEC 132

Land and Environment Court

of New South Wales

CITATION:	Binney v Mosman Municipal Council [1988] NSWLEC 132
PARTIES:	APPLICANT Binney RESPONDENT Mosman Municipal Council
FILE NUMBER(S):	20631 of 1987
CORAM:	Holland J
KEY ISSUES:	:-
LEGISLATION CITED:	Local Government Act, 1919 Land and Environment Court Act, 1979 Interpretation Act, 1987 Local Government (Amendment) Act, 1972)
CASES CITED:	Dodds v. The Warringah Shire Council (1982); Tambalum Pty. Ltd. v. Warringah Shire Council (1982); Reid v. Willoughby Municipal Council (1982); Diersche v. Fairfield City Council (1983); Torvic Housewater Pty. Limited v. Mosman Municipal Council (1985); Asser v. Willoughby Municipal Council (1982); Coffs Harbour Shire Council v. Ben Hall Industries Pty. Ltd. (1983)
DATES OF HEARING:
DATE OF JUDGMENT:	08/15/1988
LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: This is an Appeal against an order of the Court made by an Assessor.

The applicant has a swimming pool in his front yard. Between the house and the pool is a paved area. There are three sets of sliding doors at the front of the house giving access to this paved area. There is also a grassed and paved area forming part of the front yard at one side of the pool between it and a small building attached to the garage containing a change room, sauna and shower. There is no fencing between the sliding doors and the pool or between the grassed and paved area and the pool.

The pool was built pursuant to a building approval dated 30 September 1986 containing a condition that it be "enclosed with a childproof fence or enclosure, such fence or enclosure equipped with self-closing childproof latched gates to the satisfaction of the Building Surveyor".

Although this condition would appear to require the pool to be isolated by separate fencing from the rest of the property, the only fencing provided was boundary fencing and walls of structures erected on the land adjacent to the front yard. These would exclude persons from the street and neighbouring properties but not from within the house or grounds, including persons gaining access to the front yard.

Within the grounds there were three gates through which access could be gained to the front yard thence to the pool. On 23 September 1985 the Council gave the applicant notice pursuant to s.288C of the Local Government Act, 1919 directing him to -

"Fence or enclose the swimming pool or property, such fencing or enclosure to be in accordance with the Code adopted by Council for the fencing or enclosing of swimming pools and in particular to be fitted with self closing self latching gate with childproof latches."

The notice added that the works were required so that the standard of fencing would comply with the conditions previously imposed in respect of pool safety.

Although in its terms the above notice required compliance with the Code referred to, it is common ground that the provisions of that Code are irrelevant to the issues on this Appeal except so far as expressed in the direction itself, that is, in effect, the requirement for fitting the three gates earlier mentioned with self closing, self latching gates with childproof latches.

The applicant appealed to this Court against the direction; but a conference under s.34 of the Land and Environment Court Act, 1979 resulted in the matter being resolved by springs and latches being fitted to the gates to the satisfaction of the Council's health surveyor. This did not result in the pool being isolated from the house or the front yard areas within the property.

In November 1987 the Council adopted a new Code requiring existing pools to be fenced or enclosed with a childproof fence or enclosure and on 17 December 1987 gave notice to the applicant requiring him to provide such a fence or enclosure for his pool. The notice and its attachment contained the following:-

"TAKE NOTICE that the COUNCIL OF THE MUNICIPALITY OF MOSMAN in pursuance of the powers vested under Section 288C of the Local Government Act, 1919, as amended, and having regard to all the circumstances of the case, is of the opinion that the swimming pool situated at the above premises may be, by reason of its accessibility, dangerous to human life, and HEREBY directs you as the owner of the premises on which such swimming pool is located to undertake the following work within one month from the date hereof in the manner set out below:-

Fence the swimming pool, such fencing being child-proof and to be in accordance with Council's Code for fencing of swimming pools (details attached) and in particular is 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 child-proof latches.

Please ensure that these requirements are fully understood prior to the commencement of work. If clarification is required, please contact Council's Chief Health Surveyor.

Failure to comply with this notice shall constitute an offence under the provisions of the Local Government Act and may lead to further action by Council to enforce compliance.

In the interests of public safety, your co-operation is sought in undertaking the specified work without delay.

Council's Current Standard on Swimming Pool Fencing.

l.Swimming pools being fenced or enclosed with a child-proof fence or enclosure to be equipped with self-closing, self-latching, child-proof latched gates.

2. The minimum height of a child-proof fence to be fixed at 1200mm.

3. Where vertical fencing material is used, the maximum opening between the vertical sections to be fixed at 100mm.

Definitions.

1. Child - any person, male or female under the age of 6 years.

2. Child-proof fence or enclosure - a physical barrier which cannot be scaled or passed by a child, such physical barrier to be approved by Council.

3. Child-proof lock or latch - any lock or latch that is placed in such a position to the inside of the fence or enclosure, that it cannot be reached by a child or any latch or lock which may be approved from time to time by Council.

4. Self-latching or self-locking - any latch or lock to the inside of the fence or enclosure so designed to close fast when the gate is automatically self-closed.

5. Self-closing gate - a gate equipped with any device to close the gate automatically from an open position."

The applicant appealed to the Court. An Assessor heard the appeal on 12 February 1988. In doing so, he rejected a submission that the notice was invalid or the Council was estopped from giving it because of the 1985 notice having been given to and complied with by the applicant. The Assessor said:-

"It was submitted on behalf of the applicant that the notice which is the subject of this appeal was invalid or that the Council was estopped from serving the notice, because of the earlier notice which had been served on the owner and complied with by him. I cannot accept that submission. Where an Act confers a power, then, unless the contrary intention appears, the power may be exercised from time to time, as the occasion requires. The fact that the owner complied with an earlier notice under s.288C of the Local Government Act 1919 does not prevent the Council pursuant to that section imposing more stringent requirements in a later notice: Dodds v. The Warringah Shire Council (1982) 6 APA 431."

The Assessor went on to find that the pool in its present surrounds was too accessible to young children and hence dangerous to human life. He ordered that fencing, which he specified in the order, be constructed so as to enclose the pool and fence it off from the front of the house and the grassed and paved areas to which I have referred.

The applicant now appeals under s.56A of the Land and Environment Court Act, 1979, claiming that the Assessor made an error of law in rejecting the above submission. Whether there was an error of law depends upon the proper construction of s.288C of the Local Government Act, 1919, which provides as follows:-

" (l) In this section, "swimming pool" means an excavation or structure that is capable of holding water and that is solely or principally used, or designed or intended to be solely or principally used, by one or more persons for the purposes of swimming, wading or paddling.

(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 served 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) A notice under this section shall indicate that the owner has a right of appeal under this section.

(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.

...

(7) If a direction given under this section to the owner of land is not complied with within the time specified in the notice by which the direction was given, the council may enter upon the land and carry out the work which ought to have been carried out in compliance with the direction.

(8) All costs and expenses incurred by the council in connection with work carried out by it under subsection (7) upon any land shall be recoverable from the owner of the land as a debt in any court of competent jurisdiction.

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

(a) the owner -

(i) does not appeal against the direction to the Land and Environment Court; and

(ii) does not comply with the direction within the time specified in the notice of the council; or

(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 has exercised any power conferred on it under subsection (7) or (8) in respect of the land, be guilty of an offence under this Act."

The applicant contends that s.288C(2) should not be construed as enabling a council to give a direction where one has already been given and not revoked pursuant to subsection (3). It was submitted that the legislature could not have intended an owner to be subjected to co-existing multiple directions with regard to fencing a swimming pool with a liability to prosecution for an offence if any of the directions was not complied with. In support of these arguments, counsel for the applicant sought to make the following points:-

l. By subsection (9) the section was specifically made a penal provision (and not left to depend on s.632 of the Act for a penal sanction (as to which, see Re Diecut Pty. Ltd.; ex parte North Sydney Municipal Council (1963) 8 L.G.R.A.343 at pp.347-348)). This requires that it be carefully construed to avoid unjust or unreasonable consequences.

2. By s.34(l)(b)(ii) and (2)(f) of the Interpretation Act, 1987, the Court may consider the second reading speech of the Minister on the Bill that became the legislation (here the Local Government (Amendment) Act, 1972) in which he said:-

"So that the owners may know what is required, councils must give reasonable particulars of the type of fence they consider sufficient in the circumstances. To guard against unreasonable use of the council's power, the owner is given a right of appeal to the appropriate local government board of appeal."

(Hansard, Vol. 98, p.5717 (22 March 1972))

3. The uncertainties liable to flow from co-existing multiple directions are inconsistent with the imposition of penalties for non-compliance and it would be unreasonable to require an owner to comply with a new set of directions whilst still remaining liable to comply with an existing different set, particularly if, from the safety viewpoint (which is the object of the section), the new directions superseded, rendered unnecessary or were inconsistent with the old.

4. The problems of possible uncertainty, unreasonableness and inconsistency vanish if existing directions are revoked before new directions are given. In inserting the power to revoke in subsection (3), the legislature should be taken to have anticipated such problems and provided the means of avoiding them and the Court should infer that the legislative intention was that revocation of existing directions was a pre-condition to the giving of any new directions under subsection (2).

Counsel for the applicant contended that the facts of the present case illustrated the uncertainty and unreasonableness that would flow from a construction that permitted new directions to be given whilst old ones remained unrevoked. Here the owner, Mr. Binney, finds himself subject to two presently subsisting directions with no relevant change of circumstances occurring between the first and the second.

The first he has complied with by expending money on the installation of special springs and latches on the gates to the front yard on the basis that the Council, as the responsible body, had considered, as it was required to do, all the circumstance of the case and made its decision as to what measures were called for to safeguard those at risk from the existence of the pool.

The second direction involves further expenditure and, if complied with, makes the existing safety measures redundant; but does Mr. Binney continue to be subject to the first, required to maintain the then redundant safety measures in perpetuity and liable to prosecution if he does not?

It was submitted that the section should not be so construed that the owner may be left in the position that he does not know whether he is liable to a single or a double obligation when the legislature has provided a simple means of avoiding it, that is, the power to revoke existing directions before or at the same time as giving new ones.

For the Council it was submitted that under the terms of s.288C(2) the only condition upon the exercise of the power to give directions is the formation by the Council of the opinion that in the particular case there is a danger to human life, the power to revoke a direction being an independent power available to correct errors.

It was submitted that the power should be considered as having a continuing operation in relation to any pool, including one as to which a direction had been given, so as to enable the Council to act in accordance with its opinion from time to time of the risks to human life involved in the existence of the pool.

It was argued that, as it was the Council's opinion on the risks involved that governed the exercise of the power, allowance for change in a Council's appreciation or perception of the risks must have been intended and consequently the power should be construed as authorising additional directions to be given to accord with a change of view as to the adequacy of existing directions.

The validity of multiple notices under s.288C has been questioned in other cases heard by Assessors of the Court but has not, it seems, been the subject of a decision by a Judge of this Court.

In Tambalum Pty. Ltd. v. Warringah Shire Council (1982) 2 A.P.A. 161 at p.163, Mr. Assessor Riding had a case where a condition of a building approval followed at later dates by two notices under s.288C required three standards of fencing, each of the last two higher than the previous one. A submission that the last direction was void because of the earlier one was rejected with the observation that the Assessor had not been asked to refer the question of law to the Chief Judge pursuant to s.36(5) of the Land and Environment Court Act, 1979. However, he referred to the case of Reid v. Willoughby Municipal Council (No. 20672 of 1981, March 1982) where Mr. Assessor Hanson, faced with a similar situation, posed the question whether a policy of councils to reappraise previous decisions as to swimming pool safety requirements might not raise the issue of estoppel versus public interest.

In Dodds v. Warringah Shire Council (supra), the case referred to by the Assessor here, a pool had been fenced in accordance with the requirements of the Council's building approval but the Council later gave a direction under s.288C requiring additional work to be done. The owner appealed to the Court, maintaining that the fencing installed with the Council's original approval was still adequate, that circumstances had not changed and that the Council, having exercised its discretion on the matter of what was required to make the pool not dangerous to human life, did not thereafter have power under s.288C to require more to be done. Assessor Fitz-Henry expressed the opinion that the circumstances of the case had changed since the original approval and that the Council was not estopped from issuing the notice under s.288C for further work. She said, at pp.432-3:-

"Experience with freshwater swimming pools State-wide since 1972 has demonstrated the inadequacies of the pool fencing standards of earlier years and their tragic consequences."

She concluded that proposed changes of use of the land in the case before her made it contrary to the interests of public safety to allow the pool to remain directly accessible to the house and confirmed the Council's directions under s.288C.

The above and other cases before Assessors, such as Diersche v. Fairfield City Council (No. 20647 of 1983, 27 March 1984) and Torvic Housewater Pty. Limited v. Mosman Municipal Council (No. 20545 of 1985, 2l January 1986), have pointed up the burden put upon owners who, having complied with one set of requirements, are later met with another by an exercise of the power under s.288C(2) brought about by a change of policy on the part of the Council with respect to the standard or extent of safety measures to be required of pool owners.

It is evident that since the section was enacted in 1972 there has been a shift in the policy of the councils concerned from measures restricting access by outsiders, i.e. persons off the street and from neighbouring properties, to measures restricting access by insiders, i.e. persons residing or being upon the land containing the pool.

The former involves an assumption by the Council of responsibility for the safety of outsiders and entrusts the responsibility for the safety of insiders to the owner or occupier of the land, the latter involves an assumption by the Council of responsibility for the safety of both.

This has been manifested in some cases by a change from requiring the land on which the pool is located to be securely fenced against access by outsiders to requiring the pool itself to be securely fenced in isolation from the house and the rest of the grounds. In most, if not all, cases, the driving concern has been for the safety of young children who may be living on or visiting the property and able from within the boundaries of the land to gain access to the pool area.

The only reported case in a superior Court in which the construction of s.288C(2) appears to have been considered is Basser v. Willoughby Municipal Council (1982) 47 L.G.R.A. 128, a decision of the Court of Appeal on an appeal from an Assessor on a question of law when there was an appeal direct to that Court. The main question there was whether the power to direct fencing to be erected "in such manner.... as may be specified in the notice" extended to directing the location as well as the construction of a protective fence. Another question was whether the word "accessibility" referred only to access by persons outside an already fenced pool area consisting of a patio devoted to sun-bathing and recreational purposes and not to access by persons inside that fenced area. The Court held that the power extended to location as well as construction of the fence and that the possibility of access to the pool by those using the patio was a relevant matter for consideration as to the locality of a pool fence under th

e section.

It is apparent that the decision in Basser's case does not resolve the present issues but some observations of Hutley J.A. are, I think, in point. He said at pp.l30-l3l:-

"In my opinion the powers which are given to the council under s. 288C should not be construed in any narrow or technical manner. The council is charged with the fundamental responsibility of taking steps to see that a swimmingpool 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."

In construing the section it needs to be read as a whole, noticing that the context in which subsection (2) is found includes a power to revoke a direction given pursuant to it, a right of appeal to this Court against such a direction and a liability to a penalty for failure to comply with it; but, plainly, the mainspring of the section is its concern for the safety of human life and the vesting of responsibility in councils as to both assessing whether the accessibility of a swimming pool presents a danger and deciding the steps to be taken to restrict accessibility if, in the Council's opinion, it does present a danger.

It could not be validly argued that the legislature intended that a Council would have only one opportunity to consider and decide whether and, if so, what safety measures should be taken. As the Act already provides, the building of a swimming pool requires the Council's approval and safety measures may be required as a condition of that approval. S.288C(2) must therefore be seen as a power to require safety measures additional to or different from any previously required, a power exercisable at any time that the Council's opinion is that, in the circumstances of the case, the particular swimming pool is, by reason of its accessibility, dangerous to human life.

It is also unarguable, in my view, that if, after a direction under the section has been given, the circumstances have changed so that, in the Council's opinion, new dangers not guarded against by the existing direction have emerged, further directions may be given to deal with the new dangers.

Changed circumstances justifying such further directions would include changes in use or occupancy of or access to the land, damage to, destruction or disrepair of existing fencing, emergence of functional deficiencies in safety devices such as gates, springs or latches previously believed to be sound or adequate, and the like.

However, the question remains whether the Council, having exercised the power in s.288C(2) by giving directions for certain fencing to be constructed, may, after those directions have been complied with, give directions for further, additional or new works to be done, not because of a change of circumstances of the kind just described but because, for example, the Council, rethinking the matter, decides that the existing measures are inadequate or should be upgraded or, in the light of experience, the Council has a new perception of the dangers or, as I have suggested earlier, has decided to take upon itself, rather than leave it to the owner, the responsibility for safeguarding insiders, especially young children, who may be able to gain access to the pool area.

In my opinion, the answer in respect of all such examples must be that the power extends to giving new directions provided, in each case, that the Council has formed the opinion, having regard to all the current circumstances, that the swimming pool is, by reason of its current accessibility, dangerous to human life. The overriding consideration in construing the section is that its manifest object is the safeguarding of human life. It is inconsistent with the promotion of that object that a Council which, at any time, held the opinion that the accessibility of a swimming pool was dangerous to human life could not exercise a power to require the danger to be removed or guarded against because it had previously given directions which it had afterwards come to believe did not achieve or were inadequate for that purpose or because it had previously failed to perceive the danger or the full extent of it. In my opinion, the apparent object of the power requires it to be given an ambulatory operation enabling the C

ouncil to require appropriate steps to be taken whenever, in its opinion, the danger described in the subsection exists.

This view would allow multiple successive directions to be given and remain in existence at the same time with the possibility of the uncertainties and conflicts to which the applicant's contentions draw attention.

First, I should point out that no conflict between the 1985 and 1987 directions given in the present case was demonstrated or relied on as a ground of invalidity or otherwise in the hearing before the Assessor or on this appeal. Both sets of directions are capable of full compliance without any uncertainties arising because of their co-existence.

Councils may be expected to be aware of the need for certainty and reasonableness in directions given under the section, so the possibility of conflict or undue burden in multiple directions should not be great; but, in any case, subsection (5) guards against this risk by giving the owner a right of appeal to this Court. Therefore, I do not think that the possibility of uncertainty or conflict is a reason for holding that the power does not permit a new direction whilst an old one subsists.

It may be conceivable that a new direction is so unreasonable having regard to a subsisting direction as to demonstrate a failure properly to exercise the power in relation to the new one but no such case was or could be suggested here.

The applicant's complaint that he is left subject to the 1985 directions even though the 1987 directions have made them redundant is, I think, unsound. First, it may not be right to regard the safety devices on the outer gates as redundant if, as would appear to be the case, they provide an additional barrier against access to the pool by entrants from the street and from areas outside the pool area; but, second, as the applicant has fully complied with the 1985 directions he is in no continuing jeopardy of committing any offence in relation to those directions. Under subsection (9) the offence consists in a failure to comply with a direction within the time specified in the Council's notice. Once complied with there is no continuing obligation breach of which could be an offence under the section. It would seem, for example, that if a fence were removed or fell into disrepair or a gate or latch failed, the Council would need to give a fresh direction under subsection (2) to revive the obligation before the o

wner would be liable to prosecution for the offence provided by subsection (9).

It is true, as counsel for the applicant argued, that a ready means to avoid possible conflict or uncertainty between two subsisting directions lies at hand, namely, the power to revoke the earlier of the two and specify in the second all of the requirements intended by the Council to be in force at the time of the second. There may well be cases in which this is the convenient or desirable course for a Council to take but it is another thing to say that the presence of the power to revoke imports an intent that it was to be a precondition to a second exercise of the power.

There will obviously be many cases, like the present, where the new directions require entirely different work and do not result in conflict with or uncertainty arising out of the old directions or the work previously done to comply with them. In such cases, revocation of the earlier directions, even if desirable, would be immaterial to the operation of the earlier directions which had been complied with or the operation of the new directions. Revocation, even if expressly required by the section would be a merely technical requirement; but it is not expressly required as a pre-condition of an exercise of the power and, in my opinion, there is no sufficient reason for importing it as a pre-condition by implication.

It is understandable that an owner might feel unduly burdened by repeated directions for expenditure to be incurred and work carried out in fencing or enclosing his swimming pool, especially if he genuinely disagrees with the Council as to the necessity for it and more especially if, having fully complied with directions after the Council has had one go at it, he believed the issue to be at rest only to find it revived again by a new direction based on a new perception by the Council of its duties.

However, it is not open to the Court to be influenced by such considerations. The Court must take the law as it finds it and here I think that the legislature has made it plain in s.288C that, subject to the appeal provided by subsection (5), which, in effect, places an Assessor of the Court in the position of the Council for the purpose of exercising the power, the safety of human life is put in the forefront and the responsibility of deciding by what means it should be protected is placed on the shoulders of the Council.

That, in consequence, the burden falls upon the owners of land containing swimming pools and may be heavy or irksome in some cases is a price which the legislature has determined they should pay in the interest of public safety.

Before the Assessor it was argued that on the facts of the case the Council had become estopped from exercising the power in 1987 by its conduct in issuing the 1985 notice and approving the works done by the applicant in pursuance of that notice. The possibility of an estoppel arising was also canvassed in other cases before Assessors to which I have referred. The applicant in his statement of grounds of appeal in this appeal asserted that the Assessor erred in holding that the Council was not estopped from issuing the 1987 notice.

It is sufficient to dispose of this ground of appeal to state than on the hearing of the Appeal the applicant, by his counsel, expressly abandoned it and put no argument in support of it. I therefore, do not propose to deal with it, except to say that counsel referred me to the Judgment in Coffs Harbour Shire Council v. Ben Hall Industries Pty. Ltd. (1983) 48 L.G.R.A. 391 at pp.396 et seq. and acknowledged that in his view, it could not be successfully argued that the public interest involved in the exercise of the statutory powers here in question would not override any estoppel that might otherwise have been open to the applicant to claim against the Council.

For the above reasons, the Appeal fails and must be dismissed. I see no reason to deny the Council its costs of the Appeal.

The Court orders:-

1. Appeal dismissed.

2. Order of the Court made 15 April 1988 affirmed subject to substituting the words "60 days from the date of the orders made on the appeal to the Court against the order of the Court made 15 April 1988" for the words "60 days of the date of this Order".

3. Applicant to pay the respondent's costs of the Appeal.

4. Exhibits other than Ex. A may be returned.