Lismore City Council v Ross

[2023] NSWLEC 29

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lismore City Council v Ross [2023] NSWLEC 29

Hearing dates:

14 March 2023

Date of orders:

15 March 2023

Decision date:

14 March 2023

Jurisdiction:

Class 4

Before:

Moore J

Decision:

See orders in Annexure A

Catchwords:

CIVIL ENFORCEMENT ‑ swimming pool fence significantly non‑compliant with the requirements of Swimming Pools Act 1992 and its regulations - property significantly neglected ‑ pool fence not childproof ‑ risk to public safety ‑ in 2021, Council orders rectification of defective swimming pool safety fence ‑ property owners failed to comply ‑ in 2022, Council commences civil enforcement action ‑ failure to rectify fencing in response to the commencement of civil enforcement action ‑ Council seeks orders for compliance ‑ Council also seeks substituted performance order to permit filling in of swimming pool if fencing not rectified by owners ‑ no appearance by owners at any interlocutory hearing ‑ substituted service orders made ‑ no appearance by owners at final hearing ‑ inspection of property on day of final hearing ‑ photographs taken and tendered ‑ oral evidence by telephone from inspecting officer ‑ photographs disclose unsafe nature of fencing ‑ photographs show property unkempt and vegetation which would permit climbing and access to pool area even if compliant fencing installed ‑ appropriate to order owners to install compliant fencing and remove vegetation within nominated time period ‑ appropriate to make substituted performance order to permit filling in of pool if continuing non‑compliance ‑ orders made

COSTS ‑ costs conventionally follow the event ‑ no reason to depart from conventional position ‑ owners ordered to pay Council's costs of the proceedings

Legislation Cited:

Civil Procedure Act of 2005, s 98(1)

Dividing Fences Act 1991

Swimming Pools Act 1992, s 23

Category:

Principal judgment

Parties:

Lismore City Council (Applicant)
Ronald John Ross (First Respondent)
Margaret Joy Ross (Second Respondent)

Representation:

Counsel:
Mr Michael Young, solicitor (Applicant)

Solicitors:
McCartney Young Lawyers (Applicant)

File Number(s):

257667 of 2022

Publication restriction:

No

ex tempore Judgment

1. HIS HONOUR: These proceedings arise out of a Summons that was filed on 30 August 2022 concerning the state of a swimming pool and the absence of compliant fencing at premises known as 86 Rous Road, Goonellabah, within the local government area administered by Lismore City Council (the Council).

2. A direction was given to the owners of the property, Ronald John Ross and Margaret Joy Ross, on 1 February 2021 pursuant to s 23 of the Swimming Pools Act 1992 (the Swimming Pools Act) that they return to compliance the safety measures, including fencing, necessary to provide protection from the possibilities of drowning by persons, particularly children, inadvertently wandering on to the Ross’s property. That direction was not complied with, and that failure has resulted in the Council commencing these Class 4 proceedings in August 2022.

3. I indicate that I have in evidence before me a series of affidavits in Exhibit B, and a further affidavit which was provided to me this morning from the Council's solicitor, Mr Young, who has appeared before me today, attesting as to the steps that have been necessary, over a period of many months, to ensure that the proceedings were appropriately drawn to the attention of Mr Ross and Ms Ross.

4. On the various interlocutory occasions that the matter has been before me and before other judges of the Court, there has been no appearance on behalf of either Respondent to the proceedings. I am satisfied that, on multiple occasions since the first return date of the proceedings on 30 September 2022 before Robson J, there has been no appearance by them.

5. I have made orders of an interlocutory nature that have permitted appropriate substituted service to be made of the various stages of the proceedings, including, in particular, substituted service on Mr Ross as there has been evidence (of a hearsay nature ‑ admissible in interlocutory proceedings) that Mr Ross may have a disability that prevents him understanding the nature of the proceedings. There is no evidence that Ms Ross suffers from any such disability.

6. There is, I am satisfied, on the basis of evidence given by affidavit from a person who has been appointed by the Council to serve documents, including on at least one occasion service being effected by Mr Young himself, that all reasonable and necessary measures have been taken to draw these proceedings, including the hearing today, to the attention of Mr Ross and Ms Ross ‑ indeed steps perhaps going beyond that which might ordinarily be mandated but which were appropriate under the circumstances.

7. The evidence which I had had concerning the state of the premises (prior to the evidence given orally today) was from Mr Graeme Bailey, a Compliance Officer Development with the Council, with that evidence being given by affidavit dated 12 October 2022. That affidavit, and the material appended to it, forms part of Exhibit B before me today.

8. As I was concerned that I needed to have contemporary evidence as to the state of the pool and, in particular the state of the temporary fencing which had been installed by the Council around the pool; the state of dilapidation of the pool safety fencing such as there is around the pool; and, as a final element, the nature of the vegetation around the pool, Mr Young arranged for Mr Bailey to attend the premises today. Mr Bailey has given evidence by telephone link from Lismore today concerning an inspection he has undertaken of the property commencing at approximately 10.50 am today.

9. As a result of his inspection, a series of photographs have been provided and tendered by Mr Young. That bundle of nine photographs have become Exhibit C before me this morning. After Mr Bailey gave evidence as to his attendance at the property this morning, I questioned him concerning two of the photographs that are depicted in Exhibit C. They are the first two photographs that are stapled in the bundle of that exhibit.

10. The first of them depicts not only the fencing but also vegetation in the vicinity of the fence, with that photograph being taken in an easterly direction along the side of the swimming pool enclosure.

11. It was Mr Bailey's evidence in response to my questions that the fencing, as depicted, is not compliant with the requirements set pursuant to the Swimming Pools Act and its subordinate regulations. It was also his evidence that the vegetation in the background, which is substantial vegetation, was located sufficiently close to the fencing that it potentially provided a means of access, including by children, to climb over the swimming pool fencing and access the waters of the pool. The fencing is, on Mr Bailey's evidence (but also self‑evident from the photographs) non‑compliant with the requirements of the Swimming Pools Act and its regulations.

12. A further photograph, the second in the bundle, also shows other elements of the perimeter fencing that makes it clear that they are also non‑compliant.

13. I further asked Mr Bailey some questions concerning vegetation depicted in the eastern corner of the photograph (which is the third photograph in the bundle). It was Mr Bailey's evidence that that substantially trunked vegetation was on the neighbouring property but that the boundary fence between the two premises did not provide the appropriately height safety barrier for the purposes of compliance with the Swimming Pools Act.

14. I do not have jurisdiction in these proceedings to make any order with respect to the boundary fencing between the properties as, at least as I understand it, there is no express vesting in me in proceedings in this class of the Court's jurisdiction to make orders pursuant to the Dividing Fences Act 1991 arising out of orders that are sought in proceedings brought pursuant to alleged breaches of the Swimming Pools Act and the regulations made thereunder.

15. As a consequence, I am satisfied, on the evidence, that there are significant breaches giving rise to legitimate public safety concerns because of a failure over a period of now more than two years for the Respondents to comply with the necessity to fence the swimming pool in a compliant fashion.

16. The photographs that are in evidence before me in Exhibit C show, relevantly, in all other than the final photograph (which is one depicting matters not relating to the swimming pool), a significant degree of lack of maintenance of the premises and extensive vegetation growing both within and outside the temporary fencing that has been relied upon to date for the purposes of excluding persons from the swimming pool area.

17. The pictures also depict substantial black material on the surface of the swimming pool and extensive green algal scum on the surface of the water within the swimming pool. Those images are entirely consistent with the oral evidence given today by Mr Bailey that, to his knowledge, the premises have been in a substantially unkempt and dilapidated fashion for a period that might be up to ten years. It was his reasonable expectation that the maintenance of the premises in a fashion which would permit reinstatement of compliant swimming pool fencing would not occur to prevent access to the pool enclosure, either by direct access or by the regrowth of vegetation in the vicinity that would permit climbing access over any such reinstated fence.

18. In the Summons that has been filed by the Council, and upon which Mr Young moved this morning, the Council sought orders (in proposed orders 5 and 6) addressing the deficiencies in the fencing. Orders 5(a) and (b) sought that the requirements of the Swimming Pools Act as to fencing be required to be undertaken by the Respondents in order to discharge the mandated statutory requirements of the Swimming Pools Act and regulations.

19. Order 5(c) sought a substituted performance order that would permit the Council to enter upon the property and carry out the works or cause or permit the carrying out of the works in order to comply with those earlier orders proposing obligations to be imposed on Mr and Ms Ross.

20. However, the Council also sought, as an alternative to order 5(c) that the Council be given the power to enter the property and fill the pool with virgin excavated natural material so that it could not be used as a swimming pool but, more importantly, so that the pool would not be a risk to public safety or, as described in the Summons, "a threat to human health and safety".

21. I indicated to Mr Young that I was concerned that the putting of orders 5(c) and 6 in the alternative lacked precision, and that it would not make it abundantly clear to the Respondents to the proceedings what the consequences would be if I was to make orders 5(a) and (b) as sought and they were not carried out in the fashion required by those orders. I took a short adjournment to enable Mr Young to seek instructions from the Council on that point.

22. The instructions that were given to him were that the Council would no longer seek order 5(c) but would seek, as the substantive order to permit resolution of the safety defects demonstrated by the photographs in Exhibit C, that, if the Respondents did not comply with orders 5(a) and (b), then the Council be given the power to enter the premises and fill the pool. The ancillary orders which were sought were that the Council be granted access, if necessary, to give effect to that with that access be on no less than three days' notice and at a reasonable hour of the day. The Council also seeks that the Respondents pay the Council's costs of the proceedings.

23. I am satisfied that it is appropriate to make orders to the effect to proposed orders 5(a) and (b); to delete the present proposed order 5(c); and to substitute therefore, as order 5(c), what is presently pleaded in order 6, as the alternative to order 5.

24. I am satisfied that it is appropriate to permit the Council to have access to the premises to give effect to that substituted performance order. It seems to me that, in the present circumstances and in light of the material in Exhibit C and the oral evidence given by Mr Bailey this morning, that that election by the Council is the appropriate one to make, under the circumstances should it be necessary to do so because the Respondents have failed to comply with orders 5(a) and (b).

25. My only observation that I now make is that it would seem appropriate that what will now become order 6, that is, the order granting access to the Council to carry out the works if necessary on the basis of three days' notice, that there should be provision made in the orders that the giving of notice for that purpose is to be effected in the same fashion permitting substituted service of that notice on both Mr Ross and Ms Ross as has been the subject of interlocutory service orders that I have made on past occasions in these proceedings.

26. It is only under those circumstances that, if the Council is to enter on to the property, there would be an effective and appropriate method by which notice is given to the Respondents of this. It also seems to me that, as a necessary step, I should also require to be incorporated in the orders that I make that service of these orders on each of the Respondents be effected in the same substituted service process that I have authorised in the past in the interlocutory proceedings.

27. Finally, I turn to the question of costs. These are Class 4 proceedings. I am satisfied that the Respondents have each had adequate and sufficient notice not only of all stages of the proceedings but also of the hearing before me this morning. The relevant costs’ presumption is that costs will follow the event. There is nothing, I am satisfied, that would cause me to engage the discretionary power given to me by s 98(1) of the Civil Procedure Act of 2005 to otherwise order. I am therefore satisfied that I should order that the Respondents are jointly and severally liable to pay the Council's costs of the proceedings.

28. To enable all of this to occur, I direct Mr Young to provide me with a revised set of orders reflecting the matters that I have addressed this morning. Those orders should also encompass, at a later date when my reasons for decision given this morning are able to be published on Caselaw, that there be a requirement that a copy of my reasons be served on the Respondents in the same substituted service fashion.

29. I do not consider it is necessary to await the publication of my reasons on Caselaw before the serving of the substantive orders contained in orders 5(a) and (b), which are those which trigger the potential opportunity for the Council to enter onto the property and carry out the requirements of what will now be order 5(c), if the Respondents have not complied with orders 5(a) and (b).

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NOTE: The orders necessary to give effect to this decision were made on 15 March 2023 and are reproduced as Annexure A.

Annexure A

257667 of 2022 - Lismore City Council v Ross - O - 15 Mar 23 (2268583, pdf) 

Decision last updated: 23 March 2023