Handley v Pittwater Council

[2010] NSWLEC 1335

Land and Environment Court

of New South Wales

CITATION:	Handley v Pittwater Council [2010] NSWLEC 1335
PARTIES:	APPLICANT Diana Mary Handley RESPONDENT Pittwater Council
FILE NUMBER(S):	20573 and 20356 of 2010
CORAM:	Pearson C
KEY ISSUES:	SWIMMING POOLS :- Child-resistant barrier Appeal against Direction Application for exemption
LEGISLATION CITED:	Swimming Pools Act 1992 Swimming Pools Regulation 1998 Swimming Pools Regulation 2008 Interpretation Act 1987 Land and Environment Court Act 1979
CASES CITED:	Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1 Paice v Hill [2009] NSWCA 156 Wacando v Commonwealth (1981) 148 CLR 1 Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 220 Bradley v Commonwealth (1973) 128 CLR 557 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
DATES OF HEARING:	29 October 2010, 1 November 2010
DATE OF JUDGMENT:	6 December 2010
LEGAL REPRESENTATIVES:	APPLICANT Ms F Berglund Instructed by Mr P Briggs Freehills RESPONDENT Mr I Hemmings Instructed by Ms M Astridge Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Pearson

6 December 2010

20356 of 2010 Handley v Pittwater Council
20573 of 2010 Handley v Pittwater Council

JUDGMENT

1 Commissioner: These two appeals relating to a swimming pool at residential premises at 263 Whale Beach Road Whale Beach (Lot 174 DP 15376) (the property) were heard together. Appeal No 20356 of 2010 is an appeal under s26(1)(c) of the Swimming Pools Act 1992 (the Act) from a Direction to Comply issued by the respondent Council under s23(1) of the Act on 19 April 2010. Appeal No 20573 of 2010 is an appeal under s26(1)(a) of the Act from the Council’s decision to refuse to grant an exemption under s22 of the Act.

Background

2 The property is on the eastern side of Whale Beach Road, and has a two storey dwelling house. The upper level of the dwelling is divided into two residences, and the applicant is the owner of the residence on the southern side.

3 The swimming pool is located on the ground level of the dwelling, and was constructed some time before August 1967. In 1991 the owners obtained a development consent and a building approval from Warringah Shire Council (the 1991 Approvals), and in 1991-1992 demolished the former house and built the present two storey dual occupancy residence.

4 There is a deck with balustrade running along the eastern side of the first level of the residence above the pool area. On 30 October 1997 the Council approved the widening of the timber balcony by 1m (the 1997 Approval). There is a pool gate located at the northern end of the swimming pool and a flight of stairs leading from the swimming pool level to the deck. On the southern side of the building, there is a gate at the end of the deck, and a gate on the landing to a staircase leading down into the pool area. It was common ground that the barrier at the northern end of the dwelling meets the legislative requirements. The issue in these proceedings concerns the access to the swimming pool at the southern end of the building. The configuration of the deck and stairs is shown in the photograph below.

20356 of 2010: Direction

5 On 16 February 2010 an officer of the Council inspected the property and a Notice of Proposed Direction was issued on 19 February 2010. On 19 April 2010 the Council’s Principal Development Compliance Officer issued Direction to Comply NOT0030/10 which required the applicant to carry out works listed in Schedule 2 to the Direction within a period of 30 days. Those works were:

1. The resuscitation notice is to be relocated to a more prominent position within the swimming pool enclosure, in accordance with the Swimming Pools Regulation 2008.
2. The swimming pool gate on the northern elevation did not self close back to the latched position when resting against the latching device. You are required to modify the gate so that it self closes back to the latched position without the application of manual force in accordance with the Australian Standard.
3. There is a tap connection within the 900mm non climbable zone on the outside of the swimming pool fencing. You are required to either remove the tap connection or increase the height of the pool fence in this location so that a non climbable zone of 900mm is achieved in accordance with the Australian Standard.
4. The swimming pool gate at the top of the stairs did not comply with the Australian Standard. You are required to modify the swimming pool gate so that it complies with the Australian Standard or alternatively comply with Point 9 below.
5. The swimming pool fencing at the southern elevation of the property had spaces which exceeded 100mm when measured between the base of the fence and the ground level below. You are required to reduce these gaps to no greater than 100mm in accordance with the Australian Standard, or alternative, comply with point 9 below.
6. There is lattice being used as part of the swimming pool fencing. The lattice is not compliant with the legislation, so you are required to replace with complying fencing or protect the lattice with material such as perspex which can be attached to the outside of the fencing. Alternatively, you may comply with Point 9 below.
7. There was a foot hold on the rendered brick wall between two glass panels on the southern elevation of the swimming pool fencing. This foothold may facilitate access into the swimming pool area by a young child. You are required to eliminate this foothold in accordance with the Australian Standard. Alternatively, you may comply with Point 9 below.
8. The glass balustrade on the balcony must be increased in height to 1200mm where the distance to the adjacent floor level is less than 1800 mm. Alternatively you may comply with Point 9 below.
9. Install a swimming pool fence from the rear of the dwelling across to the existing glass pool fence between the swimming pool and the base of the staircase. A non-climbable zone of 900mm must be achieved between the base of the staircase and the new portion of fencing in accordance with the Australian Standard.

10. All works carried out to the swimming pool, must be carried out in accordance with the Australian Standard 1926.1-2007 “Part one: safety barriers for swimming pools”.

6 On 22 April 2010 an officer of the Council inspected the property and was satisfied that the works specified in the Direction had been carried out, with the exception of paragraphs 8 and 9.

7 The applicant is seeking in these proceedings to have the Direction set aside.

20573 of 2010: Exemption

8 On 10 June 2010 the applicant applied to the Council under s22(1)(a) and (b) of the Act to be exempted from a requirement of the Act, namely paragraph 8 of Schedule 2 to the Direction. The application was supported by a letter dated 10 June 2010 by the applicant to the Council in which she stated that the existing child resistant barriers to entry to the swimming pool complied with the Council requirements when they were installed before 1993 and that it would be unreasonable to require the owners to comply with new requirements in later legislation when the provisions for restricting access to the southern end of the deck were no less effective. On 9 July 2010 the Council refused the exemption application.

Evidence

9 The hearing commenced on site with a view. Based on measurements taken on site, the parties agreed the following facts:

• The glass balustrade on the eastern side of the deck is 930mm above the finished floor level of the deck;
• The first landing on the southern stairs is 1.475m below the finished floor level of the deck;
• The first step below the landing is 1.640m below the finished floor level of the deck;
• The second step below the landing is 1.799m below the finished floor level of the deck;
• The third step below the landing is greater than 1.8m below the finished floor level of the deck;
• The panel on the eastern balustrade to the deck is 930mm high;
• The distance from the southern end of the balustrade to the edge of the second step below the landing is 530mm;
• The panel at the southern end of the balustrade is 1200mm long;
• The panel is 125mm above the finished floor level of the deck.

10 Evidence on behalf of the applicant was in the form of an affidavit sworn by the applicant, who was not required for cross examination. In her affidavit the applicant states that she has owned a half share in 263 Whale Beach Road since the early 1980s, and the swimming pool, then unfenced, was there when the present owners acquired the property. The applicant outlines the steps taken in 1991 to obtain development consent and building approval for the demolition of the old house and the erection of the existing dwelling, and in 1997 to obtain building approval for the widening of the balcony. The applicant states in relation to the 1997 approval:

4…The approval provided for the steps at the southern end to be angled out from the expanded balcony without any bend. The co-owners later decided that we would leave the steps in their original configuration and we instructed the builder to reinstall the bottom section of the steps as before.

11 In paragraph 7, the applicant states that after a visitor broke the pool gate at the southern end of the steps in the latter part of January 2010, she contacted the Council for advice, and that Ms Tuszynski subsequently inspected the property with the owners’ consent on four occasions. Ms Tuszynski did not warn her that she would conduct a general audit of the pool area. The applicant states that she has four sons, five grandsons and one granddaughter, and that in her opinion, the balustrade, the deck, the gate at the top of the southern stairs, the stairs, and the location of the pool gate at the southern end do not create a hazard for a child who is too young to open both security gates. The applicant states:

17 In my opinion a child could not climb onto the balustrade and balance on the tubular top without falling 2.56 metres uninjured. There would still be a drop of 1.64 metres to the top step below if the child managed to climb onto the balustrade and over the tubular top to get both feet onto the protruding section of the deck. I do not believe a child could drop 1.64 metres without being injured.
18 Paragraph 8 of the council’s notice of 19 April requires a distance of 1.8 metres at this point, a difference of 16cms or 6 ¼ inches. In my opinion the extra distance would have no appreciable effect on the safety of the pool.
19 A gap between the bottom of the balustrade and the deck is 120mm. It is impossible for a crawling infant to get his or her head and shoulders through this gap, let alone a child old enough to walk.
20 Before the deck was widened by a metre in 1998 there were four steps down to the landing before the right-angle bend leading to the paved area around the pool. At that stage the vertical distance from the deck to the top step beyond the pool gate below would have been about 98cms. I base these figures on measurements taken one metre back from the edge of the present deck. The extension in 1998 increased the vertical distance to the top step beyond the pool gate below to the present 1.64 metres.
21 During the 18 or so years since we went into possession of the new house in December 1992 no young child has succeeded in getting to the pool on his or her own and no young child has attempted to climb over the balustrade, or get to the pool over the disputed section referred to in paragraph 8 of the council’s notice of 19 April.
22 During this period of nearly 18 years I have never been concerned about pool safety at 263 Whale Beach Road and I remain confident that the existing arrangements are completely safe.

12 Ms Kate Tuszynski, Development Compliance Officer, provided a Statement of Evidence on behalf of the Council. In Part 3 of her Statement of Evidence Ms Tuszynski outlines her observations on an inspection she conducted on 16 February 2010, and her conclusions on the requirements of Australian Standards AS1926-1986 and AS 1926.1-2007. At paragraph 3.2 Ms Tuszynski states:

3.2 The non-compliances with AS1926-1986 included the following:
(a) the resuscitation notice was not located in a prominent position;
(b) the swimming pool gate on the northern elevation did not self close back to the latched position;
(c) there was located within the 1200mm clear span, a brick wall, a timber balcony post and a tap handle on the outside of the swimming pool barrier;
(d) the swimming pool swimming pool gate at the top of the stairs did not comply with the AS1926-1986;
(e) the swimming pool fencing at the southern elevation of the property had spaces which exceeded 100mm between the base of the fence and the ground level below; and
(f) the use of horizontal lattice as part of the swimming pool barrier.

13 At paragraph 3.12 Ms Tuszynski states:

3.12 In my opinion, compliance with AS 1926.1-2007 could be achieved in the following ways:
(a) by increasing the height of the balustrade to 1200mm where there is a distance less than 1800mm between the balcony floor and the stair tread below (refer diagram in paragraph 3.4 above for the part of the balustrade that is in contention);
(b) install a swimming pool fence from the rear of the dwelling across to the existing glass swimming pool fence between the swimming pool and the base of the staircase (see Annexure “C” for a photo that depicts where a fence could be installed); or
(c) relocating the authorised stairs providing access to the southern end of the swimming pool to the location approved by the Council on 30 October 1997 in Building Approval P0849/97 (“Building Approval”). …

14 In Part 4 of her Statement of Evidence Ms Tuszynski states her reasons for her opinion that neither of the requirements of s22 of the Act have been met to warrant the granting of an exemption under Part 2 of the Act. In Part 5 of her Statement of Evidence Ms Tuszynski provides a summary of statistics obtained from Royal Life Saving, the Queensland Injury Surveillance Unit, and the NSW Department of Planning. Ms Tuszynski gave oral evidence and was cross examined.

15 The documentary evidence included documents relating to the development consent and building approvals granted in 1991; correspondence between the applicant and the Council and other Council records from 1992; the approval granted by the Council in 1997; and the NSW Child Death Review Team Annual Report 2009.

Legislation

16 The Act commenced on 1 August 1992. Section 4 provides that the Act applies to swimming pools (both outdoor and indoor) that are situated, or proposed to be constructed or installed, on premises on which, among other things, a residential building is located. Part 2 Div 1 of the Act applies to outdoor swimming pools for dwelling houses. Section 7 states:

7 General requirements for outdoor swimming pools

(1) The owner of the premises on which a swimming pool is situated must ensure that the swimming pool is at all times surrounded by a child-resistant barrier:
(a) that separates the swimming pool from any residential building situated on the premises and from any place (whether public or private) adjoining the premises, and
(b) that is designed, constructed, installed and maintained in accordance with the standards prescribed by the regulations.

Maximum penalty: 50 penalty units.

(2) The diagrams in Part 1 of Schedule 1 illustrate the provisions of this section.

Note. Section 7 should be read in conjunction with the other provisions of this Part, in particular sections 8, 9, 10, 18, 19 and 22.

17 Section 8 provides:

8 Exemption for swimming pools constructed before August 1990 and existing swimming pools on small properties

(1) This section applies to the following swimming pools:
(a) swimming pools the construction or installation of which commenced before 1 August 1990,
(b) swimming pools the construction or installation of which commenced before 1 July 2010 and that are situated on premises having an area of less than 230 square metres.
Note. 230 square metres is the smallest area on which a dwelling-house may currently be erected.

(2) The child-resistant barrier surrounding the swimming pool is not required to separate the swimming pool from any residential building situated on the premises so long as the means of access to the swimming pool from the building are at all times restricted in accordance with the standards prescribed by the regulations.

(3) The diagrams in Part 2 of Schedule 1 illustrate the provisions of this section.

18 Section 22 enables an application to be made for exemption from compliance with barrier requirements:

22 Local authority may grant exemptions from barrier requirements that are impracticable or unreasonable in particular cases

(1) The local authority may, on application made by the owner of any premises in or on which a swimming pool is situated, or proposed to be constructed or installed, exempt the swimming pool from all or any of the requirements of this Part if it is satisfied, in the particular circumstances of the case:
(a) that it is impracticable or unreasonable (because of the physical nature of the premises, because of the design or construction of the swimming pool or because of special circumstances of a kind recognised by the regulations as justifying the granting of an exemption) for the swimming pool to comply with those requirements, or
(b) that alternative provision, no less effective than those requirements, exists for restricting access to the swimming pool.
(2) An exemption may be granted unconditionally or subject to such conditions as the local authority considers appropriate to ensure that effective provision is made for restricting access to the swimming pool concerned or the water contained in it.
(3) A person is not guilty of an offence under this Part:
(a) if the swimming pool concerned is the subject of an exemption under this section, and
(b) if the conditions (if any) to which the exemption is subject are being complied with.
(4) For the purposes only of any appeal proceedings arising in connection with an application under this section, the local authority is taken to have refused the application if it has not finally determined the application within 6 weeks after the application was made.

19 Section 23 enables the relevant local authority to give a direction:

23 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.

20 The Swimming Pools Regulation 1998 (the 1998 Regulation) came into force on 1 September 1998. Clause 5 of the 1998 Regulation provides:

5 General requirements: sec 7

(1) For the purposes of section 7 (1) (b) of the Act, the prescribed standards in accordance with which a child-resistant barrier surrounding a swimming pool is to be designed, constructed, installed and maintained are the standards set out in AS 1926.
(2) A child-resistant barrier is taken to comply with the standards set out in AS 1926 so long as it complies with the minimum requirements of those standards.
(3) To the extent to which it is formed by, or includes, a dividing fence, a child-resistant barrier is not required to comply with such of the provisions of Clause 2.3 of AS 1926 as require there to be a clear span of 1.2 metres to finished ground level within the outside quadrant referred to in that Clause.

21 The Swimming Pools Regulation 2008 (the 2008 Regulation) came into force on 1 September 2008. Clause 5 provides:

5 General requirements for outdoor swimming pools

For the purposes of sections 7 (1) (b) and 12 (d) of the Act, the prescribed standards in accordance with which a child-resistant barrier surrounding a swimming pool is to be designed, constructed, installed and maintained are the standards set out in AS 1926.1—2007 (excluding Clause 2.8).
Note. The provisions of AS 1926.1—2007 about doorsets are inapplicable to child-resistant barriers required by section 7, since that section requires the owner of the premises on which the swimming pool is situated to ensure that the swimming pool is at all times surrounded by a child-resistant barrier that separates the swimming pool from any residential building situated on the premises and from any place adjoining the premises.

22 Clause 23 of the 2008 Regulation provides:

23 Existing complying swimming pools may continue to comply with earlier standards

(1) This clause applies to a swimming pool the construction or installation of which was completed before 1 September 2008.
(2) It is sufficient compliance with Part 2 of the Act for a swimming pool to comply with that Part on the basis of the requirements of Part 2 of the Swimming Pools Regulation 1998 (as an alternative to compliance on the basis of the requirements of Part 2 of this Regulation).
(3) However, this clause does not apply:
(a) in relation to an outdoor swimming pool—if the child-resistant barrier by which access to the swimming pool is restricted is substantially altered or rebuilt, and
(b) in relation to an indoor swimming pool—if the premises in which the swimming pool is situated are substantially altered or rebuilt in a way that affects the means of access to the swimming pool.

23 Section 26 of the Act enables an appeal to be made to the Court:

26 What appeals may be made against the decisions of a local authority?

(1) An appeal lies to the Land and Environment Court against the following decisions of a local authority:
(a) a decision to refuse to grant an exemption under section 22 in accordance with the terms of the relevant application,
(b) a decision to impose a condition on an exemption under section 22,
(c) a decision to give a direction under section 23,
(d) a decision to refuse to grant a certificate of compliance under section 24.
(2) Such an appeal must be made within 28 days after the date on which the decision was made or is taken to have been made.

24 The powers of the Court in determining these appeals in Class 2 of the Court’s jurisdiction are provided in s39 of the Land and Environment Court Act 1979, and s39(2) provides:

(2) In addition to any other functions and discretions that 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.

Appeal 20356 of 2010: Direction

25 The applicant contends that the Direction is void and of no effect as it was issued to require compliance with the requirements of Australian Standard AS1926.1 – 2007 (the 2007 Standard), which is the standard prescribed by cl5 of the 2008 Regulation. The applicant submits that cl23 of the 2008 Regulation applies, so that the standard to be applied is Australian Standard AS1926 -1986 (the 1986 Standard), prescribed in cl5 of the 1998 Regulation. The heading to cl23 of the 2008 Regulation refers to “complying” swimming pools; however, by virtue of s35(2) of the Interpretation Act 1987 the heading is not taken to be part of the Act. The text of cl23 is not ambiguous, and there is no basis for interpreting its provisions by reference to the heading. Clause 23 applies, the swimming pool was constructed before 1 September 2008, and accordingly the 1986 Standard applies. If the Council’s interpretation of cl23 of the 2008 Regulation is correct, any malicious or accidental damage to a barrier would mean that a pool would have to comply with the 2007 Standard; the purpose of cl23 is that there is no retrospective application of the 2007 Standard.

26 The applicant relies on the 1991 and 1997 Approvals, and the conditions imposed on those approvals, so that if the 1986 Standard applies it does not require a balustrade of 1200mm. Condition HC66 of the 1991 Approval required the balustrade to be a minimum of 860mm high; condition 16 of the 1997 Approval required compliance with Part D3.9 of the Building Code of Australia (BCA), and condition 18 required compliance with the 1986 Standard.

27 The 1986 Standard defines “fence” to mean:

-the assembly of components, natural or otherwise, which forms the intended barrier to the pool, exclusive of gates.
NOTE: The fence includes items such as posts and panels, constructed or natural walls, and sides of buildings where they form part of the intended barrier.

28 The balustrade is not intended to be the “fence”. The balcony itself and the wall form the barrier as defined in s3 of the Act, and the child resistant barrier for the purposes of s7 of the Act is the gate on the stairs; on that basis, the height of the balustrade is irrelevant.

29 The applicant submits that if the 2007 Standard does apply, the issue is with the 530mm of balustrade on the southern edge of the deck. It is fanciful to assume that a child would aim for the narrow ledge of the landing. While the top step is 1640mm in reality a child would have to climb over the balustrade to jump onto the top step, 2.57m. The top of the balustrade is cylindrical. The supposed risk is not a real risk to child of the kind contemplated. The applicant accepts that the gate at the top of the stairs is not a pool gate, however a child would not be able to get through that gate. The barrier in place inhibits children and complies with the spirit of the standard. There is a discretion whether to issue a Direction.

30 The respondent submits that cl23 of the 2008 Regulation applies to a swimming pool that was completed before 1 September 2008 and that complied with the provisions of the Regulation and Standard current as at that date, and that the 2008 Regulation does not in those circumstances impose a positive obligation to upgrade child resistant barriers and other restrictions to comply with the 2007 Standard. The respondent relies on s35(5) and s34 of the Interpretation Act to permit the use of extrinsic materials in the interpretation of the Regulation, which includes the heading and the explanatory note to the Regulation, which states that “existing swimming pools may continue to comply with the older Australian Standards, and the other Standards in the Swimming Pools Regulation 1998…” The 2007 Standard provides in cl2.9 that if there is a drop of less than 1.8m from the floor of the balcony to the finished ground level below, then the balustrade must be 1200mm high, and there is a portion of the balcony where it is not. If the applicant is correct in relying on the provisions of the 1986 Standard, the entire balustrade along the deck is non-compliant and would have to be increased to 1200mm in height. The conditions of the 1991 approval are not relevant as the plans approved had a child resistant barrier at the pool level and did not rely on the deck and balustrade. The plan approved in 1997 did not provide information on any new pool fencing as the consent was approving the re-alignment of the steps and the extension of the deck by 1m, with no impact on the child resistant barrier at the pool deck. The conditions required that the balustrade comply with the BCA, and that the pool gates and fence comply with the 1986 Standard.

Appeal 20573 of 2010: Exemption

31 The applicant contends that if the 530mm section of balustrade along the deck should be 1200mm, an exemption should be granted under s22(1)(a) of the Act on the basis that compliance is impracticable or unreasonable because of the existing fencing, or under s22(1)(b) on the basis that the existing fencing provides no less effective a barrier. The applicant submits that it is relevant to have regard to the behaviour of a child, and to assume that the commonsense standard is that of a reasonably informed adult providing for the protection of children. The swimming pool has been there for a long time, and the existing balustrade for 12 years, and it does provide a barrier that is no less effective. The applicant has done what was required in the earlier applications which required compliance with the BCA and not the swimming pool guidelines, and is entitled not to have to revisit those requirements. The applicant submits that the addition of extra Perspex for 530mm from the southern edge of the balustrade would create visual problems, and there is no real safety issue.

32 The respondent submits that none of the three circumstances that constitute a finding that compliance is impracticable or unreasonable for the purposes of s22(1)(a) apply, and neither aesthetics nor prior conduct of the Council are within the identified grounds in s22(1)(a). In any event, s32 makes it clear that the Act is to prevail over the provisions of any other Act or law, or any agreement, covenant or instrument, which would be sufficiently broad to cover any prior agreement or consent granted by the Council. Section 22(1)(b) is not met as rather than there being alternative provision for restricting access, there is non-compliance. The respondent submits that if the 1986 Standard applies, it would be appropriate to grant an exemption to apply the provisions of the 2007 Standard so that only that 530mm section of the balustrade would be required to be increased in height to 1200mm.

Consideration

33 Section 7 of the Act states the general requirement that an outdoor swimming pool be “at all times surrounded by a child-resistant barrier”. The term “barrier” is defined in s3:

barrier means a fence or wall, and includes:
(a) any gate or door set in the fence or wall, and
(b) any other structure or thing declared by the regulations to be a barrier for the purposes of this Act.

34 The Act does not define “child-resistant”, however, s7 relevantly requires that the child-resistant barrier both separate the swimming pool from any residential building situated on the premises, and that it be designed, constructed, installed and maintained in accordance with the standards prescribed by the regulations. As acknowledged by the respondent in submissions, s8(2) would apply to a swimming pool constructed before 1 August 1990 so as not to require that the barrier separate the swimming pool from any residential building, “so long as the means of access to the swimming pool from the building are at all times restricted in accordance with the standards prescribed by the Regulations.” The applicant is not relying in these proceedings on s8 of the Act. It was common ground that the swimming pool is not directly accessible from those parts of the building on ground level. The applicant’s position is that there is access from the residential parts of the building to the deck and that the barriers to access are the pool fence, the staircases, the two gates, the balcony and the balustrade.

Whether cl23 of the 2008 Regulation applies

35 The 2008 Regulation was in force at the date the Direction was issued and when the application for exemption was considered and determined, and remains in force. Clause 5(1) of the 2008 Regulation prescribes compliance with the 2007 Standard, unless cl23 applies. The applicant contends that cl23 applies to a swimming pool constructed before 1 September 2008; the respondent contends that it applies only where a swimming pool constructed before 1 September 2008 complied with the 1986 Standard as prescribed by cl 5 of the 1998 Regulation.

36 In Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 the Court of Appeal considered the principles relevant to the construction of legislation. At paragraph [12], Allsop P (with whom Giles, Hodgson, Tobias and Macfarlan JJA agreed) held:

…However, as is now beyond dispute, in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context. Context is to be considered in the first instance, not merely when some ambiguity is discerned. Context is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed. These are legitimate means of understanding the purpose of the Act and of the relevant provisions, against which the terms and structure of the provisions and the Act, and a whole, are to be understood. Fundamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose. Nevertheless, general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect. The foregoing principles can be taken from the following: Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421-424, specifically approved by the Court (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) in Bropho v Western Australia [1990] HCA 24; 171 CLR 1 at 20; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Newcastle City Council v GIO General Ltd [1997] HCA 53; 191 CLR 85 at 99 (Toohey, Gaudron and Gummow JJ), 112-113 (McHugh J); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 381-382 [69]-[71] and 384 [78] (McHugh, Gummow, Kirby and Hayne JJ); Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 at 23 [49] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Eastman v Director of Public Prosecutions of the Australian Capital Territory [2003] HCA 28; 214 CLR 318 at 322 [1] (Gleeson CJ agreeing with Heydon J) 330 [32] (Gummow J agreeing with Heydon J), 331 [34] (Kirby J agreeing with Heydon J), 331 [35] (Hayne J agreeing with Heydon J), 331 [36] (Callinan J agreeing with Heydon J) and 368 [140] and fn 99 (Heydon J); Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; 218 CLR 273 at 280-281 [10]-[11] (McHugh ACJ and Gummow and Hayne JJ), 305-306 (Kirby J, in dissent, though not in expression of principle); Minister for Immigration and Citizenship v SZJGV [2009] HCA 40 at [8]-[9] (French CJ and Bell J), [47]-[48] (Crennan and Kiefel JJ), cf [19]-[20] (Hayne J), though compare Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 and Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [33]-[34]; and see also the Interpretation Act 1987 (NSW), ss 33 and 34.

37 At paragraphs [13]-[14], Allsop P referred to the judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71], and the judgment of Mason J in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315, to support the proposition that a legislative provision must be construed in context, using context in its widest sense.

38 Applying these principles to the interpretation of cl23 of the 2008 Regulation, the only express reference to a “complying” swimming pool is that contained in the heading. Subsection 35(2) of the Interpretation Act applies, so that this heading is taken not to be part of the Regulation. Subsection 35(5) provides:

(5) This section does not limit the application of section 34 in relation to the use of any heading, marginal note, footnote or endnote in the interpretation of the provision to which the heading, marginal note, footnote or endnote relates.

39 Section 34(1) of the Interpretation Act permits the consideration of any material not forming part of the Regulation that is capable of assisting in ascertainment of the meaning of a provision, in the following circumstances:

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or
(b) to determine the meaning of the provision:
(i) if the provision is ambiguous or obscure, or
(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

40 The applicant submits that a heading may be taken into consideration in determining the meaning of a provision where that provision is ambiguous, relying on the authority of Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1, Paice v Hill [2009] NSWCA 156, Wacando v Commonwealth (1981) 148 CLR 1, Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 220, Bradley v Commonwealth (1973) 128 CLR 557, and Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; however submits that cl23 is not ambiguous.

41 In construing cl23, the context, in the sense referred to in Wilson v State Rail Authority, is the legislative scheme the purpose of which is to restrict access to swimming pools in order to avoid or minimise the risk of pool related drownings. The legislative scheme as a whole includes the Act, the regulations and the Standards prescribed at the relevant time for the purposes of the regulations. The primary group to which both the 1986 and 2007 Standards are directed is children under the age of 5. In both standards, the Preface states that the provisions set out in the standard are intended to provide barriers that are child resistant, rather than child proof. This is consistent with the Act, which requires in s7 that there be a “child resistant” barrier. The prescription of technical requirements for the design, construction, installation and maintenance of fences and gates by reference to an Australian Standard means that developments over time which are addressed in modification and updating of the standards can be incorporated into the legislative scheme. An illustration of that is that the 2007 Standard makes specific provision for a balcony projecting into the pool area (Part 2.9), and defines “finished ground level” (at 1.3.6), and that the 1986 Standard does not. The Explanatory Note to the 2008 Regulation confirms the intention to incorporate the most appropriate technical standards when it states that the 1986 Standard has been replaced, and refers to the 2007 Standard as the “most up-to-date standard”.

42 Part 2 of the Act imposes obligations on the owner of a swimming pool to which the Act applies. The relevant general obligation in these appeals is that imposed by s7, which requires that there be a child resistant barrier that both separates the swimming pool from the residential building, and that is designed, constructed, installed and maintained in accordance with the standards prescribed by the regulations. From 1 September 2008 the applicable standards were those set out in the 2007 Standard.

43 The function of cl23 of the 2008 Regulation is to address the potential retrospective application of the 2007 Standard to pools constructed before that date, which includes the swimming pool the subject of these proceedings. Clause 23 achieves that by providing, in subclause (2), that the obligations in Part 2 of the Act can be met by compliance with the requirements of Part 2 of the 1998 Regulation (including the standards set by the 1986 Standard). There are limits to non-retrospective application; one is expressly set by subclause (3), which requires that if the child resistant barrier is “substantially altered or rebuilt”, it must then comply with the requirements of the 2008 Regulation and 2007 Standard. It is consistent with this limited non-retrospectivity to read cl 23(2) as requiring that the swimming pool to which it applies already complies with Part 2 of the Act on the basis of its compliance with Part 2 of the 1998 Regulation. To pose an extreme example, if the applicant’s argument is correct, the owner of a swimming pool constructed before 1 September 2008 that had no child resistant barrier could argue that the 1986 Standard should apply and that the 2007 Standard should not at any stage apply to the swimming pool. That would defeat the purpose of the legislative scheme which operates through the prescription of technical requirements updated over time.

44 This construction constrains the effect of the general words in cl23(3) in accordance with the context in which they appear (Wilson v State Rail Authority at [12]), so that cl23 permits the owner of an existing swimming pool to rely on the child resistant barrier that in fact satisfied the requirements of the legislation as it stood before the introduction of new requirements on 1 September 2008, but only until such time as that barrier is substantially altered or rebuilt. Section 34(1)(a) of the Interpretation Act permits reference to both the heading and the Explanatory Note to the 2008 Regulation to confirm this as the ordinary meaning of the text. Both the heading, and the Explanatory Note, which states that “(b) existing swimming pools may continue to comply with the older Australian Standard…”, confirm this interpretation.

45 It follows that for cl23 of the 2008 Regulation to apply, so that it is sufficient for the swimming pool the subject of these proceedings to comply with Part 2 of the Act on the basis of the requirements of the 1998 Regulation (and thus the 1986 Standard) rather than the 2008 Regulation (and 2007 Standard), I must be satisfied that the swimming pool in fact complied with the requirements of the 1998 Regulation and 1986 Standard.

The 1986 Standard

46 The applicant relied on the 1991 and 1997 Approvals in considering compliance with the 1986 Standard. The 1991 Approval plan A1d (exhibit A) shows a pool fence and gate at the pool level. I accept that on that plan there was a child resistant barrier at the pool deck level and therefore no need for the balustrade to form part of the child resistant barrier, and so condition 12 required only that the balustrade be a minimum of 860mm. Based on the approved drawing 97004 BA01 (exhibit 1), the 1997 Approval approved the relocation of the stairs at the southern end of the extended balcony, and made no change to the pool fencing. The consent did not address the swimming pool fence, and it is accordingly consistent with that interpretation of the consent that condition 16 required that the balustrade to the balcony, deck and stairs comply with Part D3.9 of the BCA and that condition 18 required that pool gates and fencing comply with the then applicable 1986 Standard.

47 On the basis that the balustrade was not intended to be the barrier for the purposes of compliance with s7 of the Act at the time of the 1991 and 1997 Approvals, those approvals do not in my view assist the applicant. In any event, had there been an inconsistency between the 1991 or 1997 Approvals and the swimming pools legislation, s32 of the Act makes it clear that the requirements of the Act operate in addition to the provisions of any other legislation, and prevail with those other requirements to the extent of any inconsistency. Even if the 1997 Approval could be read as specifying a barrier to meet the requirements of the swimming pools legislation, the southern stairs were not constructed in accordance with the plans approved in 1997.

48 In her Statement of Evidence Ms Tuszynski identified six matters observed during her inspection on 16 February 2010 which in her opinion constituted non-compliances with the 1986 Standard: see paragraph [12] above. Ms Tuszynski is an accredited certifier (Building Surveying Grade 3: Building Professionals Board), and has four years’ experience in local government as a building surveyor assessing compliance with regulatory requirements including the BCA and the swimming pools legislation. I accept Ms Tuszynski’s evidence as to the application of the technical requirements of the relevant Standards, and find based on that evidence that the swimming pool did not comply with the 1986 Standard in the six respects identified at paragraph 3.2 of her Statement of Evidence. Applying the construction of cl23 of the 2008 Regulation adopted above, while cl23(1) may be met, cl23 does not apply to the swimming pool the subject of these proceedings. It follows that the swimming pool must be assessed against the requirements of the 2008 Regulation and 2007 Standard.

49 If the applicant’s interpretation of cl23 of the 2008 Regulation is correct and it was sufficient for the barrier to comply with the requirements of the 1986 Standard, it was common ground that the 1986 Standard does not make specific provision for a balcony, and the application of the 1986 Standard to the present configuration of the southern stairs depends on the construction of Section 2 of the standard.

50 Part 2.1 of the 1986 Standard requires that:

Fences and gates shall be designed and constructed so that at any point the outside of the fencing will present an effective barrier to young children.

51 Part 2.3 Fencing Height provides:

Fences and gates shall have an effective perpendicular height of at least 1.2m at any point along their length, on the outside of the fencing.
The height shall be considered to be effective if a quadrant of radius 1.2m, located as shown in Fig.2.1, provides a clear span of 1.2m to finished ground level, or to any projections from, or objects on, the ground.
The height along the length of the fence shall be measured perpendicular to the finished ground level (see Fig 2.2).

52 The applicant’s position is that the gate on the landing of the stairs is the “child resistant barrier”, and that on that basis, the balustrade is not intended to be a “fence” for the purposes of the 1986 Standard, and the height of the balustrade is irrelevant. However, in the absence of specific provision for a balcony extending into a pool area, or a definition of “finished ground level” in the 1986 Standard, I agree with the respondent that it is open to read the general requirements in section 2.3 of the 1986 Standard to mean that to the extent that the balustrade forms any part of the barrier intended to inhibit access from the dwelling, it would be required to be 1200mm to the finished ground level (being the deck). However, given my conclusions at paragraph [48] above, it is not necessary to decide this.

Applying the 2007 Standard

53 Clause 2.9 of the 2007 Standard requires that a balcony include a balustrade that complies with the requirements for a barrier in two circumstances: where the balcony projects into the pool area and the distance from the floor of the balcony to the finished ground level of the pool area is less than 1800mm (Figure 2.9(a)); or where any part of the perimeter of the balcony floor is within 900mm of the top of the barrier (Figure 2.9(b)).

54 Clause 1.3.6 of the 2007 Standard defines “finished ground level” as being “a permanent stable surface”. On the basis of the agreed facts, each of the landing, and the first two steps below it, is a “finished ground level” of the pool area which is less than 1800mm below the floor of the balcony. Even if the balcony does not constitute the “child resistant barrier”, if it projects into the pool area, cl 2.9(a) requires that the balcony include a balustrade that complies with the requirements for a barrier, namely that it be 1200mm high. It follows that the 530mm section of the balustrade from the southern end does not comply with the 2007 Standard.

55 This conclusion means that it was open to the respondent to issue a Direction under s23 of the Act to require the applicant to take the measures specified in the Direction NOT0030/10, including that specified in paragraph 8. Subsection 23(2) limits the power to make a direction where it would impose requirements more onerous than a condition to an exemption granted under s22 of the Act.

Whether an exemption should be granted

56 Section 22 of the Act sets out the grounds on which an exemption can be granted. The applicant does not dispute that it would be possible to erect additional perspex to increase the height of the balustrade for 530mm to 1200mm so that it complies with the requirements of Part 2 of the Act. There is nothing in the evidence before me to suggest that it would be impracticable to do so. The applicant’s argument that s22(1)(a) is met is essentially based on the submission that it would be unreasonable to do so. The application of s22(1)(a) is limited to the three circumstances specified in parentheses. There is no applicable provision in the Regulations that would satisfy the third circumstance. I agree with the respondent that there is nothing about the physical nature of the premises, or the design or construction of the swimming pool, that would make it unreasonable for the swimming pool to comply with the requirement of 2007 Standard. The applicant’s concern for aesthetics is not in my view a factor that would be relevant in such a determination. The 1991 and 1997 Approvals did not, for the reasons stated above, address the issue of the provision of a barrier meeting the requirements of the legislation, other than by requiring in condition 18 of the 1997 Approval that the requirements of the then applicable 1986 Standard be met. I am not persuaded that past conduct of the Council in the exercise of its approval or inspection powers would in any event be a relevant matter in considering whether the three circumstances specified for the purposes of s22(1)(a) of the Act are satisfied.

57 In considering whether s22(1)(b) is satisfied, the applicant’s position is essentially based on her experience of the 18 years since the dwelling was rebuilt and the 12 years since the deck was widened. I accept her evidence that she and her family, which includes young grandchildren, have not in that time experienced a situation where a young child has succeeded in getting into the pool area on his or her own or attempted to climb over the balustrade. I am not persuaded, however, that the actual experience of the occupants of the dwelling is relevant in assessing whether alternative provision exists for restricting access to the swimming pool that is “no less effective” than the requirements of Part 2 of the Act. Those requirements include the technical requirements of the applicable Standard, which is, for the purposes of determining the application for exemption, the 2007 Standard. The present configuration of the landing and stairs, which run parallel to the deck and balustrade instead of at the angle approved in the 1997 Approval, does not provide the height considered necessary in the 2007 Standard to provide a sufficient barrier in the situation where a balcony extends into the pool area. The existing configuration does not make alternative provision to that required by Part 2, including the technical requirements of the 2007 Standard that provides that separation, so as to be no less effective that those requirements. I agree with the respondent that in the context of the legislation it is appropriate to make the assessment required by s22(1)(b) by reference to the provisions of the Regulations and Standard, and not by reference to the experience of the occupants of the dwelling where the swimming pool is located, and that on that assessment s22(1)(b) is not satisfied.

58 I am not satisfied that either of s22(1)(a) or (b) is met and accordingly I conclude that there is no basis for the granting of the exemption sought by the applicant, and the appeal against the Council’s determination of that application should be dismissed.

Direction requiring compliance with the 2007 Standard

59 The next issue to determine is whether, in the absence of an exemption under s22 of the Act, the Direction should be confirmed. The Direction was made by reference to the 2007 Standard, and included works to rectify a number of non-compliances. It was common ground that all except the requirement in paragraph 8 (and its alternative in paragraph 9) have been rectified. In considering whether the Direction should require compliance with paragraph 8 and 9, I accept that it is a significant step to direct a property owner to carry out works on their property, particularly in circumstances such as these where the swimming pool was constructed many years ago. However, in the context of the legislative scheme which is focussed on avoiding pool-related drowning of young children by means of measures incorporating standards updated as required, I am satisfied that it is a proper exercise of the discretion conferred in s23 to direct compliance.

60 Direction NOT0030/10 was made on 19 April 2010 and required compliance within 30 days. In those circumstances, as an alternative to dismissing the appeal in matter 20356 of 2010, it may be appropriate to consider varying the terms of the Direction including the period for compliance.

Conclusion

61 I am not satisfied that an exemption can or should be granted under s22 of the Act, and accordingly, I propose to dismiss the appeal in Appeal No. 20573 of 2010. In Appeal No. 20356 of 2010, I will make directions in consultation with the parties to provide an opportunity to make submissions as to the appropriate orders, following which orders disposing of both appeals will be made in chambers.

Linda Pearson
Commissioner of the Court