Hamblin v Building and Development Tribunal

[2007] QPEC 39

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Hamblin v The Certification Professionals & Anor [2007] QPEC 039
PARTIES:	ALLAN LLOYD HAMBLIN
Appellant V
BUILDING AND DEVELOPMENT TRIBUNAL
First Respondent And
THE CERTIFICATION PROFESSIONALS
Second Respondent
FILE NO/S:	BD 2222/06
DIVISION:	Planning and Environment
PROCEEDING:	Appeal from Building and Development Tribunal
ORIGINATING  COURT:	Building and Development Tribunal
DELIVERED ON:	10 May 2007
DELIVERED AT:	Brisbane
HEARING DATE:	3 May 2007
JUDGE:	Alan Wilson SC, DCJ
ORDER:	Appeal dismissed
CATCHWORDS:	APPEAL – APPEAL FROM TRIBUNAL – WORDS AND PHRASES – ‘indoor swimming pool’ – whether appellant’s swimming pool properly so described – appeal proceedings – nature of appeal
Building Act 1975
Integrated Planning Act 1997, ss 4.1.37, 4.1.50, 4.1.54(2)
Cases considered: Basser v Willoughby Municipal Council (1982) 47 LGRA 128 Binney v Mosman Municipal Council (1988) 66 LGRA 215 Boswell v Crucible Steel Company [1925] 1 KB 119 Holiday Fellowship Ltd v Hereford [1959] 1 WLR 211 Skomba v Maroochy Shire Council [2005] QPELR 457
COUNSEL:	W L Cochrane for appellant A N Skoien for second respondent
SOLICITORS:	A J Torbey & Associates for appellant Shire Solicitor, Pine Rivers Shire Council for second respondent

1. This is an appeal against a decision of the Queensland Building and Development Tribunal made on 28 June 2006 in which the Tribunal dismissed an appeal by Mr Hamblin against a decision of a building certifier, (the second respondent) the Certification Professionals[1]. Although the first respondent was named in the appeal proceedings, it was removed under an earlier Order[2].

   [1]            The Tribunal member’s decision is contained in the Appeal Book, Exhibit 1, Pt 9

   [2]            Order his Honour Judge Brabazon QC, 6 December 2006

2. The appeal turns upon the question whether a swimming pool at Mr Hamblin’s residence at 1278 Coominya Connection Road, Lowood is or is not, as constructed, an ‘indoor swimming pool’ within the meaning of that term as it is used in the Building Act 1975.

3. The appeal comes here pursuant to s 4.1.37 of the Integrated Planning Act 1997. Appeals from tribunals are limited to errors or mistakes of law and the respondent did not demur from the proposition that, if an error was made by the tribunal, it was of that ilk – ie, this appeal revolves around the construction the tribunal placed upon the definition of ‘indoor swimming pool’ in the legislation. The appeal is by way of hearing anew (s 4.1.52) and the appellant carries the onus (s 4.1.50(8)).

4. The plans of the house show the pool is, in effect, incorporated within its external walls, an impression confirmed by photographs of the residence[3]. From the outside, the home obviously contains some external walls supporting a clear glass roof. Those structures surround and cover the pool which is, otherwise, incorporated within the residence itself.

   [3]            Exhibit 1, tab 10

5. In April 2005 the second respondent, as a private certifier acting on behalf of Pine Rivers Shire Council, issued a development approval for the construction of the pool within an already established residence, and authorising that development in terms of approved plans. Those plans showed a ‘pool room’ on the northern side of the residence in which the pool was to be located.

6. About one third of the eastern and western walls of that room and its entire northern wall are external walls forming part of the residence itself. The balance of the pool room, approximately two thirds of wall area, adjoins the interior of the residence – i.e. internal walls or doors.

7. The northern, western and eastern exterior walls have various windows which can be opened, despite the fact the development approval did not support any adjustable windows in those walls. As the evidence now shows, however, they have been secured in a way which prevents opening beyond 100 mm and are no longer, I understand, contentious[4].

   [4]            See oral submissions for second respondent at Transcript p 25, ll 10-16

8. There is, however, a hinged door in the eastern external wall which can potentially be used for access to and from the pool from outside the residence. The private certifier sought to delete this external door from the development approval; or, alternatively, indicated that the door should be permanently closed, noting that there should be no direct access to the pool from outside the residence, for example by way of door or gate.

9. An inspection in December 2005 recorded that the pool room did not comply with pool fencing regulations in Queensland, with a specific note that the external windows needed to be treated to deny access to and from the residence. The appellant then sought changes to the conditions of the development approval to allow for certification of the external door, and windows. The second respondent declined that request.

10. Mr Hamblin appealed that decision to the Building and Development Tribunal. The learned Referee, Mr Rooney, analysed the definition of ‘indoor swimming pool’ in the Building Act and, after reference to dictionary definitions of the word ‘wall’ and to a publication issued by the Department of Local Government and Planning, Guidelines for the Interpretation of Swimming Pool Fencing Requirements, held that the definition of an indoor swimming pool did not allow access from outside the premises, but only from within it – and, therefore, that the second respondents condition on the approved plans was appropriate. The appeal was, then, refused.

11. At the time the development approval was issued the Building Act defined ‘indoor swimming pool’ as ‘… a swimming pool completely enclosed by the walls of a building’. The Building Code of Australia does not contain a definition of ‘wall’ but defines an external or separating wall as ‘… an outer wall of a building which is not a separating wall’. The new shorter Oxford dictionary defines ‘wall’ as a structure serving to ‘… enclose, protect or divide a space or property’; and, ‘… a barrier, impediment or obstacle to communication, interaction etc.’ The word ‘enclose’ is defined, vis a vis walls, to mean they ‘… prevent free passage in and out’.

12. As I understand the appellant’s submissions, the notion of walls around a swimming pool must, sensibly, include structures which might contain either windows or doors. The alternative, it was said, would be to build an enclosure with no doors or windows which would, then, be unable to be entered. As submissions for the second respondent pointed out, however, it is not inconceivable and, indeed, quite likely that the Legislature envisaged that a wall could, or should, have openings – but a pool within them could, nevertheless, be ‘completely enclosed’ by those walls if they effectively prevent access to the pool from outside them.

13. While a construction of the definition of an indoor swimming pool in terms that any aperture with the potential to permit access through the walls is discordant with its requirements might appear, at first, a little draconian it is not inconsistent with the apparent use, by the legislature, of a default definition for an ‘outdoor swimming pool’ which gives the latter an effective meaning that only pools which strictly conform with the definition of ‘indoor swimming pool’ can avoid the application of pool fencing requirements for the former. (As I understand the appellant’s submissions, he agreed with that analysis of the legislation – i.e. any swimming pool that is not an ‘indoor swimming pool’ under the Act is subject to the code requirements for pool fencing under the Building Regulation 2006[5].)

    [5]            At the time of the development approval herein, the Standard Building Regulation 1993

14. This construction does not sit uncomfortably with some older cases to which I was referred by counsel for the appellant: see Boswell v Crucible Steel Company [1925] 1 KB 119, and Holiday Fellowship Ltd v Hereford [1959] 1 WLR 211. It also accords with decisions in which an analysis of similar legislation has been undertaken. In Skomba v Maroochy Shire Council [2005] QPELR 457 the question which arose concerned the use of particular gates as part of the fencing of an outdoor pool and their compliance, or otherwise, with the Building Act and the Standard Building Regulation 1993. McLauchlan QC, DCJ said:

    [11] … The primary purpose of the legislation being for the protection of children, I would favour the construction of the Tribunal over that of the appellants … where the wall of the building does not form part of the fencing of the pool, then direct access to the pool area from the building is not permitted; but where the wall of the building does form part of the fencing of the pool any access to the pool area from the building is not permitted …

    [12] The proper construction of the legislation in my opinion produces the result that, where the wall of the house forms part of the fencing of the pool, no access to the pool area from the building is permitted, whether that access be ‘direct’ or ‘indirect’.

15. In Basser v Willoughby Municipal Council (1982) 47 LGRA 128 the NSW Court of Appeal was concerned with a local authority’s power under relevant legislation to impose conditions about the form and manner of pool fencing. Hutley JA said, at 103:

    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 swimming pool is not by reason of its accessibility dangerous to human life and its opinion on that which is fundamental.

16. In Binney v Mosman Municipal Council (1988) 66 LGRA 215 Holland J said at 223:

    The overriding consideration in construing the section is that its manifest object is the safe-guarding 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 the 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 … in my opinion, the apparent object of the power requires it to be given an ambulatory operation enabling the Council to require appropriate steps to be taken whenever, in its opinion, the danger described in the subjection exists.

    and, at 224:

    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 a 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 sub-section (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.

17. The circumstances here attract the operation of these principles of construction. Support for it can also be found in the Explanatory Notes to the Building Amendment Bill 2003 (which became Act No. 53 of 2003), in which the Act was amended to exclude any reference to pools ‘on’ a building, restricting indoor pools to those completely enclosed by the walls of a building[6]. As the Notes reveal this was intended to deal, specifically, with pools on a deck or roof which were not wholly enclosed by walls because of ‘… the incidence of drowning and near drowning of young children in domestic swimming pools’ and with the objective of improving ‘… safety for young children around residential swimming pools.’

    [6]            Act No. 3 of 2003, s 4(2)

18. Then, on 1 September 2006, the Act was again amended to define an ‘indoor swimming pool’ as ‘… a swimming pool completely enclosed by the walls of a building or a swimming pool on a deck or roof top of a building if the pool is, under the usual ways of entry or leaving the building, only accessible from the inside of the building.’[7] The plain intention of these amendments is to ensure that only internal access can be gained to pools which are not ‘completely enclosed’ by walls – for example, pools on decks or roofs. This cements the clear inference taken from the earlier definition.

    [7]            Act No. 36 of 2006, s 70(4A)

19. In the present circumstances, to comply with this definition of ‘indoor swimming pool’, the appellant needs to ensure that the external windows are permanently fixed to ensure that no access can ever be achieved through them. As noted earlier, this may, now, have been done in a way which does not offend the definition. The presence of the external door, however, remains an issue. To achieve compliance this door would have to be fixed permanently shut and until that is done the pool does not fall within the definition.

20. During the hearing I was presented with Exhibit 2 which purports to show a new fence outside the northern, western and eastern walls enclosing door in the eastern wall. It is said this enclosure would comply with pool fencing requirements for an outdoor swimming pool. I was referred to s 4.1.54 of the Integrated Planning Act 1997 which, in sub-section 2(b) gives the court, in an appeal of this kind, power to change the decision appealed against. In effect the appellant sought an outcome in this appeal effectively approving the development, subject to the fencing arrangement illustrated by Exhibit 2.

21. The Act, however, creates an offence of failing to comply with the pool fencing requirements for an outdoor swimming pool. I agree with the submission of the second respondent that it would be inappropriate for this Court to change the conditions of the development approval to allow some different treatment of the external windows and, more importantly, the external door where, that treatment would not itself alter the proper characterisation of the pool as an outdoor swimming pool under the Act[8]. This hesitation is not inappropriate, too, if reference is made to the very limited circumstances in which a local authority may grant an exemption from compliance with pool fencing requirements, under s 240.

    [8]            Section 235

22. In summary, I accept the second respondent’s submission that the pool is only properly characterised as an ‘indoor swimming pool’ under the Act if there is no opening in any of the external walls through which access to the pool could be achieved. Unless the external windows and the external door are permanently fixed to prevent such access the pool is, in truth, an outdoor swimming pool under the legislation. The original development approval quite appropriately treated the pool as an indoor swimming pool under the Act and imposed conditions to achieve that outcome. For these reasons the appeal is refused.