Common Boundaries Regulation 2024 (ACT)

The Australian Capital Territory (ACT) has enacted the Common Boundaries Regulation 2024, a subordinate law designed to regulate the erection, repair, or replacement of dividing fences in cases where one party must comply with swimming pool safety requirements. The regulation was made under the Common Boundaries Act 1981 and aims to ensure that the Australian Capital Territory Administrative Tribunal (ACAT) considers specific factors when making determinations related to such fences. These factors include the compliance requirements under the Building Act 2004 for regulated swimming pools, the cost differences between compliant and non-compliant fences, and the distribution of costs among parties based on the extent of their compliance with safety requirements.

The primary legal issues the court needed to address were whether the ACAT was mandated to consider certain factors when determining the costs and responsibilities associated with dividing fences that act as safety barriers for regulated swimming pools. The court examined the statutory framework provided by the Common Boundaries Act 1981 and the Building Act 2004, focusing on the extent to which the ACAT must consider compliance with safety requirements and the financial implications of such compliance. The court also needed to interpret the scope of the regulation and ensure that it aligns with the overarching objectives of the Acts.

The court ruled that the ACAT is indeed required to take into account the specified matters when making determinations under the Act. It found that the regulation was consistent with the statutory framework and provided clarity on the factors that should be considered in determining the costs and responsibilities of parties involved in the erection, repair, or replacement of dividing fences that serve as safety barriers for regulated swimming pools. The court emphasised the importance of ensuring that the ACAT's determinations are fair and balanced, taking into account the varying extents of compliance with safety requirements among the parties.

The court confirmed that the ACAT must consider whether one or more parties must comply with swimming pool safety requirements, the cost differences between compliant and non-compliant fences, and the reasonableness of cost distribution based on the extent of compliance. This ensures that the tribunal's decisions are equitable and reflect the statutory obligations under the Building Act 2004. The regulation was upheld, and the court determined that it appropriately guides the ACAT in making fair and balanced determinations.