Gross v Ku-ring-gai Council

[2017] NSWLEC 1457

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Gross v Ku-ring-gai Council [2017] NSWLEC 1457
Hearing dates:	18 August 2017
Date of orders:	24 August 2017
Decision date:	24 August 2017
Jurisdiction:	Class 1
Before:	Martin SC
Decision:	(1) The appeal is upheld. (2) Notice number SPA0210/16 issued by the Council under section 23 of the Swimming Pools Act 1992 is modified as set out in the updated notice shown as Attachment “A” to this judgment. (3) The Exhibits, save for Exhibits 1, 3, A and B, are returned.
Catchwords:	Swimming pool – appeal against direction – adequacy of child restraint barrier
Legislation Cited:	Australian Standard 1926.1-2012 Swimming Pools Act 1992 Swimming Pools Regulations 2008
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Dr Ernestine Gross (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: Self-represented (Applicant) Mr C Drury, Solicitor (Respondent)   Solicitors: Sparke Helmore (Respondent)
File Number(s):	2017/40758
Publication restriction:	No

Judgment

1. This appeal has been brought by the Applicant against the issue of a notice (SPA0210/16) issued by the Ku-ring-gai Council (the Council) under section 23 of the Swimming Pools Act 1992 (the Notice) in respect of a swimming pool located at 11 Hesperus Street, Pymble, and dated 13 January 2017.

2. The question at the heart of this appeal is a simple one: should the Applicant be required to comply with the terms of the Notice issued by this Council to ensure the child resistant barrier is compliant with the relevant legislative regime? I find the answer to that question to be “yes”.

3. The relevant regulatory regime as it relates to pool fences, for the purposes of this appeal, is the Swimming Pools Act 1992, the Swimming Pool Regulations 2008 and the Australian Standard 1926.1 – 2012 ( the regulatory regime).

4. Without reciting the lengthy chronology and series of exchanges between the parties, for present purposes it is convenient to state that the boundary fence between the two properties located at number 11, and its immediate neighbour located at 15 Hesperus Street, was observed by Council officers to have collapsed in June 2016: Statement of evidence of Mr Warwick Bailey, Environmental Health and Building Surveyor and Fire Safety Co-ordinator with the Council, at [8] and [10]: Ex 2. This led to a situation where there was no longer a swimming pool boundary barrier to prevent access to the swimming pools located on each property.

5. As a result of the collapse of the fence, an Emergency Direction under s 23 (6) of the Swimming Pools Act was issued by Mr Bailey on 28 June 2016. The order was issued to each of the Applicant and the owner of number 15, requiring amongst other things the construction of a complying 1.8 m high boundary barrier fence to isolate the swimming pools of each premises: Ex 2 at [11].

6. Following the making of that order, the old fence was removed, and a new fence constructed. The new fence, constructed of timber palings and approximately 1.8 m in height, sits above a retaining wall. That retaining wall had not been visible until the old fence had been removed. The retaining wall is constructed of what might be described as “builder’s rubble”.

7. In the course of attending to the collapsed boundary fence, a number of non-compliances with the regulatory regime with respect to the pool located on the Applicant’s property was observed by Mr Bailey. It is these non-compliances which were the subject of the Notice, and the subject of this appeal.

8. The issue of the Notice followed the issue of a draft direction from the Council to Dr Gross in December 2016, inviting Dr Gross to make representation as to why the direction should not be served. Dr Gross duly made representations. Having considered those, Council nonetheless proceeded to issue the Notice.

9. Section 23 of the Swimming Pools Act is set out below:

3   Local authority may order compliance with Part

1. The local authority may, by order in writing served on the owner of any premises in or on which a swimming pool is situated, direct the owner to take, within such reasonable time as is specified in the direction, such measures as are so specified to ensure that the swimming pool or premises comply with the requirements of this Part or of a condition of an exemption granted under section 22.

2. Such a direction is of no effect to the extent to which it purports to impose requirements more onerous than the requirements of this Part or of a condition of an exemption granted under section 22.

3. A person on whom a direction is served must not fail to comply with the requirements of the direction.

Maximum penalty: 50 penalty units.

4. A direction does not cease to have effect merely because there is a change in the ownership of the premises to which the direction relates, but applies to the new owner in the same way as it applied to the old.

5. A direction may not be served under this section unless the local authority has, at least 14 days before, served on the owner of the premises a notice of intention to serve the direction.

6. A local authority may serve a direction under this section without serving a notice under subsection (5) if it considers that the safety of a person would be at risk if the requirements of the direction were not carried out as soon as possible.

10. The Notice specified the areas of non-compliance as those specified in Schedule 1. That schedule identified the following matters:

1. Warning Notice

2. Gate/s

3. Gate shielding device

4. Barrier height

5. Openings in the barrier

6. 900 mm non-climbable zone

7. Objects within 300 mm of the inside barrier

11. Under the Notice, the works required to be carried out to the swimming pool barrier are required by the Council to be performed in accordance with the Australian Standard 1926.1-2012 “Part 1 – Safety barriers for swimming pools”. The work was directed to be completed within 60 days of the date of the direction to comply.

12. The reason given for the making of the order was expressed thus: “the existing barrier does not form an effective child resistant barrier that separates the swimming pool from the residence or other structures on the premises or from any public place or private premises adjoining the subject site”.

13. The Applicant lodged this appeal on 8 February 2017.

14. The issue of the Notice followed a period of correspondence and some level of dispute between the Applicant and the Council, and the Applicant and her neighbour at number 15 Hesperus Street, Pymble. This was because the Applicant was concerned about the nature and legality of works undertaken in respect of land at 15 Hesperus Street arising out of a development consent issued by the Council for that property in 1999 with respect to works which were completed in 2001.

15. Dr Gross was surprised by the composition and form of the retaining wall, and has continued to express concern about the structural soundness of the barrier wall, that is, the wall beneath the newly-constructed paling fence.

16. Dr Gross remains aggrieved at the state of the retaining wall, and believes that it is not compliant with relevant standards and requirements as they apply to retaining walls. She also has complaints with respect to flooding of her property which she attributes to the work done on her neighbour’s property. This is a matter which was the subject of an appeal before Molesworth AJ on 24 July 2017, against a decision by the Registrar of this Court not to allow additional evidence (with respect to the wall and drainage) to be filed in this appeal.

17. After hearing submissions, Molesworth AJ declined to allow into evidence material which was not prepared for this appeal, and which in his view went beyond the scope of the matters in dispute. Molesworth AJ went on to state that insofar as the Applicant is concerned about water draining onto her property, as well as rubble and other material, allegedly from number 15 Hesperus Street, these are “matters which in a normal course would be addressed in separate proceedings between you and your neighbour”. His Honour went on to say that “whatever the bases by which the issues between you and your neighbour are founded upon, they are not related, in my opinion, with the specific issues which are set out in the order number SPA 0210/16”: T 24/07/2017 at p.3.

18. I respectfully concur with his Honour’s finding.

The Site Visit

19. On 18 August 2017, at the commencement of the hearing, I had the benefit of attending the Site, together with the Applicant, the Council’s legal representative and Mr Bailey, the author of the Notice. At the commencement of that site visit, I expressly alluded to the ruling of Molesworth AJ in order to maintain the focus of the site inspection and associated evidence on the Notice rather than any other matters.

20. In the course of that inspection, Mr Bailey went through each of the matters set out in the Notice and explained why, in the view of the Council, they represented instances of non-compliance with the requirement to provide a child resistant barrier as specified in the regulatory regime. Mr Bailey also took measurements and explained in detail where and how the non-compliances occurred. Mr Bailey took particular care to ensure that Dr Gross understood each of the matters required by the Notice. Indeed, the site inspection proceeded akin to a problem-solving exercise, with the Council canvassing possible fencing solutions with Dr Gross in a co-operative fashion, including offering to attend to explain to a pool fencer chosen by Dr Gross what was required for the Notice to be complied with.

21. One of the matters the subject of the Notice – the self-closing gate located on the northern side of the swimming pool - is no longer in contention, as it is capable of self-closing. In addition, subsequent to the issue of the Notice, Dr Gross complied with the first item, namely the provision of a warning notice (CPR chart). The Council is satisfied that the actions of Dr Gross meet the requirement of that item.

22. On site, save for the matters resolved as set out in [21] above, Dr Gross agreed to comply with the matters in the Notice. The hearing was adjourned until later in the day to allow the Council to modify the Notice to reflect the agreement reached between the parties (including allowing the Applicant additional time to comply) and for draft consent orders to be prepared.

The hearing

23. Upon return to Court, after documents had been formally tendered into evidence, including statements from Dr Gross and Mr Bailey, Dr Gross requested the opportunity to make some comments on the draft Consent Orders, which she had not yet signed. In the course of making those comments, it soon became apparent from Dr Gross’ remarks that there was in fact no consent between the parties. Instead of agreeing to comply with the Notice, Dr Gross’s position had reverted to her earlier position as expressed in the Applicant’s Draft Conditions filed on 11 August 2017, namely that the Notice should be dismissed until the Council addressed her concerns regarding the works undertaken at number 15 Hesperus Street.

24. Dr Gross maintained that as the pool fence was required to be upgraded, the entire pool fence needed to be examined, including the fence along the boundary with her neighbour. In other words, there should be an inspection of the four sides of the pool fence (which included the boundary fence and retaining wall between her property and her neighbour), and not simply an inspection of the three sides of the fence entirely within her property.

25. Dr Gross further put that there had been no such examination, as the condition of the boundary wall only became clear when the fence between the two properties collapsed, revealing the condition of the retaining wall for the first time.

26. Dr Gross sought to rely upon an extract of the State Environmental Planning Policy (Exempt and Complying Development) 2008 to establish that retaining walls and structural work of a certain height requires specific features, including a water retention requirement, and certification. However, the part of the SEPP on which she sought to rely was drawn from the Rural Housing Code and thus had no relevance to this case.

27. As noted above, Dr Gross sought to link her compliance with the Notice with enforcement action by the Council in relation to what she asserts is the non-compliance of the boundary wall with the DA issued in respect of 15 Hesperus Street in 1999. The Court does not accept that this is a proper approach to take; however, the Court stated that it would consider any submissions from Dr Gross which went to the adequacy or otherwise of the boundary wall in forming an appropriate child restraint boundary.

28. Mr Drury responded to Dr Gross’ submission with respect to the need to examine all four sides of the pool fence by adducing evidence from Mr Bailey, who was sworn in and gave oral evidence.

29. Mr Bailey expressed his opinion that the barrier between numbers 11 and 15, including the gravity retaining wall, complies with the Swimming Pool Act, the Regulations made thereunder and the relevant Australian Standard. He was unequivocal in his opinion that the “gravity wall” component complied. There was nothing he identified in his inspection which led him to believe that that wall was non-compliant.

30. In cross-examination, the Applicant drew Mr Bailey’s attention to a photograph in her affidavit (Ex B p. 19) which was a photograph of logs that Mr Bailey described as a support system and a constructed retaining wall. He conceded that while it may not have been a gravity wall (which definition was agreed to be that of a wall held up by its own weight), in his opinion it was a constructed system, and was satisfactory for a swimming pool barrier.

31. Mr Bailey expressed the opinion that the metal pieces, pieces of rock and other material could be considered to be a substitute for a keystone wall, in that a rubble wall could perform the function of a gravity type of wall. He further expressed the view that the mass of material in the wall provided retention for the ground behind it. When the Applicant put to him that the wall was not stable and could not fulfil the requirements pertaining to retaining walls higher than 600mm, Mr Bailey stated that he was satisfied as to its soundness, noting that it was “plumb” and had suffered no rotation. He did not know how thick it was so could only opine that it appeared to be structurally adequate, but noted that he had sighted a certificate from an engineer in respect of the wall.

32. Mr Bailey did not concede that any further examination was necessary with respect to the ability of the boundary fence to comply with the child barrier requirements of the regulatory regime.

33. The Council submitted that contrary to the submission of the Applicant, the entire fence had been inspected, both the boundary component, and the internal components, that taken together comprise the entire barrier. Moreover, it is not relevant that there are not presently children residing at the Site, as the Site could change hands in the future.

Decision

34. Should Dr Gross wish to agitate her concerns regarding the boundary fence and the retaining wall she is of course free to do so, using the appropriate cause of action against the appropriate party and before the appropriate decision-maker. Indeed, Dr Gross informed the Court that she had written to the Council on 9 August 2017, asking the Council to take enforcement action with respect to the fence by mid-November 2017.

35. I am not unsympathetic to Dr Gross’ complaints about aspects of the boundary wall, in particular the appearance of metal waste and the like contained within it. These matters, however, do not go to the issue of that wall’s compliance with the swimming pool regulatory regime. To the extent that this appeal is concerned with the Notice issued by the Council on 13 January 2017, I am satisfied that compliance with the Notice is required. I accept the Council’s submissions that there are clear instances of non-compliance with the regulatory regime (as identified in the Notice), and that it is a matter of public interest for the non-compliances to be corrected.

36. Sworn evidence has been provided by the Council’s expert to the effect that the boundary fence is compliant with pool fencing requirements. It is upon this evidence I rely, as well as the statement of evidence tendered in this appeal and my observations at the site visit, in finding that the Council’s direction should be upheld. I place no weight on what Mr Bailey has said concerning an engineering certificate (referred to at [31]).

37. In light of the compliance with items in the Notice (as set out at [21]) and the Council’s offer to extend the period of compliance from 60 to 90 days, I will make orders which reflect the updated position as reflected in the Council’s further Notice dated 18 August 2017.

Orders

38. The Orders of the Court are:

1. The appeal is upheld.

2. Notice number SPA0210/16 issued by the Council under section 23 of the Swimming Pools Act 1992 is modified as set out in the updated notice shown as Attachment “A” to this judgment.

3. The Exhibits, save for Exhibits 1, 3, A and B, are returned.

………………………….

Rosemary Martin

Senior Commissioner

40758.17 (Attachment A) (177 KB, pdf) 40758.17 (Attachment A) (177 KB, pdf)

Amendments

24 August 2017 - Attachment A added.

Decision last updated: 24 August 2017